Published Tuesday, February 19, 2013
BY KATE BRUMBACK
ATLANTA (AP) – Georgia's supply of the single drug it uses to perform executions is set to expire next month, and state officials haven't said whether they've found a way to get more of the powerful sedative that is in relatively short supply.
The state has 17 vials of pentobarbital, which is enough for six lethal injections, corrections officials said. Georgia Department of Corrections spokeswoman Gwendolyn Hogan did not respond to questions about what the state might be doing to obtain more pentobarbital, but she said the state doesn't intend to change its execution method.
Georgia changed its execution protocol from a three-drug combination to a single-drug method using pentobarbital in July. It had been using pentobarbital to sedate inmates before injecting pancuronium bromide to paralyze them and then potassium chloride to stop their hearts.
The state has two executions scheduled this week. Warren Lee Hill is set to be executed Tuesday evening and Andrew Allen Cook is set to be put to death Thursday evening. The state doesn't currently have any executions set, and it's unlikely any others will be scheduled before the state's pentobarbital expires March 1, Hogan said.
A number of states have grappled with difficulties securing drugs for executions in recent years as manufacturers of the drugs, which generally have other medical purposes, said they didn't want their drugs used for executions.
Georgia began using pentobarbital as part of its three-drug combination in 2011 after another drug, sodium thiopental, became unavailable when its European supplier bowed to pressure from death penalty opponents and stopped making it. But now pentobarbital appears to be in relatively short supply as well.
Denmark-based Lundbeck Inc., the only U.S.-licensed maker of pentobarbital, sold the product to another firm in 2011. Lundbeck said a distribution system meant to keep the drug out of the hands of prisons would remain in place after Lake Forest, Ill.-based Akorn Inc. acquired the drug.
"It's a problem for states," said Richard Dieter, executive director of the Death Penalty Information Center. "They keep having to switch drugs when the supply gets difficult, so they keep having to write different protocols and get them approved."
But it's very difficult to tell exactly how much pentobarbital is out there and available to states for executions or what other options states are considering because corrections officials aren't always forthcoming with details about their execution method plans, Dieter said.
There has been some indication that some states may turn to compounding pharmacies to get pentobarbital. Such pharmacies custom-mix solutions, creams and other medications in doses or forms that generally aren't commercially available.
But that could have additional challenges. Ohio, which also uses a single dose of pentobarbital, has enough pentobarbital to execute four inmates, but has nine executions scheduled after that. The state's prisons agency indicated last week that it wants a law to protect compounding pharmacies that might mix execution drugs. Currently, Ohio state law doesn't allow compounding pharmacies to mix drugs if they're commercially available.
Repeated changes of execution drugs or methods also opens states to legal challenges that can delay executions, as lawyers for death row inmates use various arguments to question whether the new methods or drugs are humane or whether their use is legal.
Lawyers for Hill, for example, have now filed at least two challenges to Georgia's new one-drug method.
Hill was originally set to be executed in July. The state delayed his execution for about a week when it changed its execution protocol. The state Supreme Court then stepped in and temporarily delayed it again when Hill's lawyers filed a challenge saying corrections officials violated administrative procedure when they made the change. The high court earlier this month denied that challenge, and Hill's execution was reset for Tuesday.
But on Friday lawyers for Hill, Cook and another Georgia death row inmate whose execution date has yet to be set asked a federal judge in Washington to issue an order to prevent the state from using pentobarbital to execute them without a doctor's prescription.
The three inmates are asking the federal judge to direct the Drug Enforcement Administration to prevent the use of pentobarbital in lethal injections. They argue that the Georgia Department of Corrections' use of the drug without a doctor's prescription violates the federal Controlled Substances Act. A judge yet to take any action on that complaint.
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