Oklahoma is moving forward with plans to execute a prisoner despite a shortage of a drug used in lethal injections that has forced some states to temporarily halt executions.
A hearing in federal court Friday will look at the implications of adopting a different drug, one used to euthanize animals, that has never been tested on people.
Corrections officials in Oklahoma tried to find a dose of sodium thiopental to carry out the state's next execution. When they couldn't get it, they changed their protocol to allow the use of pentobarbital instead. The question before the federal court is whether substituting the new drug violates an inmate's Eighth Amendment right against cruel and unusual punishment.
Jerry Massie, a spokesman for the Oklahoma Department of Corrections, says it does not.
"We believe that ... would meet all the constitutional requirements to carry out the execution," Massie said. "We do not believe it would be cruel and unusual punishment."
Most states use a three-drug cocktail to carry out lethal injections: The first drug, the one that isn't available, is an anesthetic that renders a person unconscious; the second drug is a paralytic; and the third stops the heart.
States outline exactly how the lethal injection process will take place, and some legal experts say officials can't just change the procedure at will.
"The state is basically experimenting on the execution of a human being using a drug that's never been used before, and this is really a first," said Deborah Denno, a law professor at Fordham University in New York.
She says the court will look at many issues involving pentobarbital, which is used to euthanize animals. There are questions about the proper dose for people, and, Denno says, if the first drug in the cocktail does not work properly, it would be a violation of an inmate's rights.
"There's consensus among experts, pro-death-penalty and anti-death-penalty experts alike, that if this drug [the anesthesia] is not effective ... the injection of the other two drugs would constitute cruel and unusual punishment because the inmate would be aware of the pain and suffering," she said.
John David Duty is set to be executed Dec. 16 in Oklahoma. While in prison, he strangled his cell mate.
In court briefs filed on his behalf, attorneys argue that pentobarbital is unsafe and is not approved by the Food and Drug Administration. They say there have been numerous problems in executions across the country even with the drug that has been tested. Defense lawyers also say the new drug is not an ultra-short-acting barbiturate, as the law requires.
Two states, Ohio and Washington, now use a single-drug protocol in executions, which means prisoners get a massive dose of sodium thiopental. Others are trying to figure out what to do while the drug shortage continues.
"Some states have announced that they have an adequate supply of sodium thiopental," said Megan McCracken, Eighth Amendment counsel at the Death Penalty Clinic at the University of California, Berkeley. "Other states have had trouble obtaining the drug and have either turned to other states to get it or, as we've learned recently, have had to seek it from a foreign source, from another country."
Arizona officials carried out an execution in October with a dose they obtained from the United Kingdom. In California and Kentucky, executions are on hold because their doses expired. Tennessee officials recently obtained the drug but wouldn't say where they got it.
The company that makes sodium thiopental, Hospira, has said it can't produce the drug this year, but it could be available early next year. In the meantime, legal experts suggest the Oklahoma proposal of using another more widely available anesthetic could set a new standard for lethal injection.