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A shortage of a drug used in lethal injections has forced some states to temporarily halt executions. But Oklahoma is moving forward, anyway, with plans for an execution next month. The state plans to use a substitute drug, one that is used to euthanize animals, but has never been tested on people. A federal court holds a hearing on that drug today, as NPR's Kathy Lohr reports.

KATHY LOHR: Corrections officials in Oklahoma tried to find a dose of sodium thiopental to carry out the state's next execution. When they couldnt 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 8th amendment right against cruel and unusual punishment. Jerry Massie with the Oklahoma Department of Corrections says it does not.

Mr. JERRY MASSIE (Oklahoma Department of Correction): Yeah. We believe that that would meet all the constitutional requirements to carry out the execution. We do not believe it would be cruel and unusual punishment.

LOHR: Most states use a three drug cocktail to carry out lethal injections. The first drug is an anesthetic that renders a person unconscious - that's the drug that's not available. 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.

Professor DEBORAH DENNO (Law, Fordham University): 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.

LOHR: Deborah Denno is 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.

Prof. DENNO: There's consensus among experts, pro-death penalty, anti-death penalty experts alike, that if this drug - the first drug - is not effective, the anesthesia, that the injection of the other two drugs would constitute cruel and unusual punishment, because the inmate would be aware of the pain and suffering.

LOHR: John Duty is set to be executed December 16th in Oklahoma. While in prison, he strangled his cellmate. In court briefs filed on his behalf, attorneys argue pentobarbital is unsafe and it is not approved by the FDA. They say there've been numerous problems in executions across the country, even with the drug that's 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. Megan McCracken is with the Death Penalty Clinic at the University of California, Berkley.

Ms. MEGAN MCCRACKEN (Death Penalty Clinic, University of California): Some states have announced that they have an adequate supply of sodium thiopental. 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.

LOHR: Arizona officials carried out an execution in October with a dose they obtained from the UK. 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.

Kathy Lohr, NPR News.�

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