DAVID GREENE, host:

Now to a very different drug issue: a shortage of an anesthetic given to prisoners during lethal injections. It's caused some states to delay executions. As NPR's Kathy Lohr reports, the trouble getting the drug could again raise questions about the legality of lethal injection.

KATHY LOHR: The drug in short supply is sodium thiopental, and in more than 30 states, it's one of three drugs used for lethal injection. Some states have been trying to get additional supplies of the drug for months.

In August, Kentucky's governor was asked to sign death warrants for three prisoners but could set only one execution date because it only had a single dose.

Mr. TODD HENSON (Spokesman, Kentucky Department of Corrections): Well, we've had the drug on backorder since March.

LOHR: Todd Henson is a spokesman for the Kentucky Department of Corrections.

Mr. HENSON: And the company that supplies it to us advised that they were unable to produce it because they weren't able to get the active ingredient from their supplier.

LOHR: The company, Hospira, based Illinois, is apparently the only manufacturer of the drug. It has told Kentucky officials it won't be available until early next year.

Two states, Washington and Ohio, use only sodium thiopental in their executions. They administer enough of the sedative to cause an overdose, which kills the prisoner. Ohio officials won't discuss how the shortage will affect upcoming executions.

But questions about lethal injection are not new to Ohio. A year ago, corrections officers spent two hours trying to find a vein in a prisoner but never did. That execution was stopped. Now, the drug shortage complicates the issue.

Mr. JAMES HARDIMAN (Legal Director, ACLU of Ohio): I think it's definitely a problem.

LOHR: James Hardiman is legal director of the ACLU of Ohio.

Mr. HARDIMAN: And even if there is enough for the initial execution, there is not enough for backups. So we've got and have had some very serious concerns about this haphazard method of implementing the ultimate punishment.

LOHR: Ohio officials say they have a backup drug but would not elaborate. Still, implementing the use of a different drug may be a problem.

In Oklahoma, officials want to use a substitute drug. But a judge didn't agree and last month stopped an execution.

Richard Dieter is with the Death Penalty Information Center, a group that opposes the death penalty.

Mr. RICHARD DIETER (Death Penalty Information Center): States can't just change their method of execution without either some legislation or at least an administrative procedure that goes before public comment, and so to make the change is a six-month or a year process.

LOHR: The U.S. Supreme Court decision that upheld lethal injection focused on the use of the three-drug cocktail. And Dieter says that means states can't carry out lethal injection however they want to.

Mr. DIETER: If you start to change the drugs, you at least have to make a showing that this has been vetted, tested. What evidence do you have that this isn't going to be severely painful and unreliable?

LOHR: Legal experts say the shortage has created new questions. Deborah Denno is a professor at Fordham University Law School. In states where only this drug is used, she says executions should not go forward. In other states, Denno says:

Professor DEBORAH DENNO (Fordham University Law School): They're going to have a problem because this is the drug that's supposed to induce unconsciousness in an inmate, and if you don't have it, that's per se going to be cruel and unusual because the second two drugs are a paralytic agent and a toxic, and that's going to be incredibly painful. And there's consensus on that being inhumane.

LOHR: More than a dozen executions are scheduled before the end of the year. And more legal challenges are expected as corrections departments try to figure out how to proceed without the use of this key drug.

Kathy Lohr, NPR News.

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