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A Convict's Lethal Injection Challenge - A Short(age) Story


Capital punishment, also known as death penalty, is a highly sensitive and controversial issue around the world. The history of this practice dates as far back as the sixteenth century B.C., and according to reports, the first recorded death penalty occurred in Egypt.

Although death penalty has been laid to rest in more than two thirds of countries as a barbaric legacy of the past, it is still retained in some of the developed countries like the U.S. and Japan.

The first known infliction of death as a punishment in American colonies was reportedly that of Captain George Kendall, which occurred in Jamestown Colony (present day Virginia near Williamsburg) in 1608. In the U.S, the death penalty was suspended for a brief period in the 1970s. However, it was reinstated in 1976.

Ever since the reinstatement, a total of 1,281 executions have been carried out in the U.S. so far, including 4 in 2012. In the U.S., the death penalty is in place in 34 of the 50 states.

According to Death Penalty Information Center, the number of new death sentences issued in the U.S. in 2011 were down to 78 from 112 in 2010. Over the past decade, the number of executions in the country declined by half - from 85 in 2000 to 43 in 2011.

Lethal injection, electrocution, gas chamber, hanging and firing squad are the methods of execution authorized in the U.S. Lethal injection is the common mode of execution in the country as it is considered a more humane alternative to other methods like electrocution or firing squad.

The lethal injection is a series of three drugs - Sodium thiopental or Pentobarbital, Pancuronium bromide and Potassium chloride, administered one after the other in the same order.

Sodium thiopental, often referred to as "truth serum", and belonging to the family of barbiturate, acts as an anesthetic. Pancuronium bromide is a muscle-relaxant that stops breathing by paralyzing the diaphragm and lungs. Potassium chloride causes death by inducing cardiac arrest.

Before Pentobarbital, which is also an anesthetic agent, became a part of the lethal injection, the sole anesthetic that was a part of the three-drug regimen was Sodium thiopental. It was only from December 2010 that Pentobarbital became a part of the lethal three drug protocol, and that too was for a reason.

The only company in the U.S. that was the source of FDA-approved Sodium thiopental was Hospira Inc. Due to manufacturing issues at its North Carolina plant, the company suspended production of Sodium thiopental in 2009. It was around the same time that the European Union also blocked the export of Sodium thiopental to the U.S. on ethical grounds. Since the end of the 1960s, all the European Union Member States have absolutely abandoned the death penalty in law.

Hospira had planned to resume production of Sodium thiopental after shifting production from its North Carolina plant to its plant in Liscate, Italy, in the first quarter of 2011. But in January 2011, Hospira announced its decision to cease production and exit the Sodium thiopental market altogether because it couldn't assure Italian authorities that the company's Italian-made Sodium thiopental wouldn't be used as a part of the lethal injections.

With supplies of Sodium thiopental drying up, there was a dire shortage of the drug in the U.S., which delayed executions, and even resulted in postponement of signing death warrants in several states. It was during this time that correctional facilities in several states switched to Lundbeck-made Pentobarbital, sold under the name Nembutal, from Sodium thiopental. Lundbeck is a Danish pharmaceutical company and the manufacturing plant for Pentobarbital is based in Kansas, U.S. Late last December, Lundbeck divested a portfolio of products, including Pentobarbital to US-based pharmaceutical company Akorn Inc.

Pentobarbital is commonly used to euthanize dogs, cats, and horses, and its approved use in the humans is for controlling seizures. Many medical and legal experts have been opposing the use of Pentobarbital for the purpose of capital punishment since there is no assurance for the drug's associated safety and efficacy profiles in such instances. Lundbeck has also been objecting to the use of Pentobarbital for lethal injection in the U.S. and has placed strict restrictions on the distribution of the drug.

In order to carry out the executions without delay, the correctional facilities in some states like Arizona, Arkansas, California, Georgia, Nebraska and Tennessee obtained a new supply of Sodium thiopental from foreign sources. To ensure that the new supplies of Sodium thiopental are not counterfeit, only those states that had properly registered with federal regulators before importing the anesthetic were allowed to retain the stockpiles while supplies of Sodium thiopental illegally imported were confiscated by Drug Enforcement Administration, or DEA.

Amid this background, last week, a Supreme Court stayed the execution of a death row inmate based on the legality of purchase of Sodium thiopental, the first of three drugs used in the lethal injection protocol.

The stay of execution was granted by Nebraska Supreme Court for the condemned prisoner Michael Ryan.

Ryan, who was convicted in two murders, has been on death row since 1985. His execution had been set for March 6, 2012. Ryan had appealed that his death sentence should not be enforced, and his lawyers had challenged the manner in which Sodium thiopental was obtained by Nebraska Department of Correctional Services, or NDCS, to carry out the execution.

And here is how the Sodium thiopental fiasco in NDCS has played out...

In December 2010, India-based Kayem Pharma Pvt. sold a 500-gram consignment of Sodium thiopental to the Nebraska Department of Correctional Services, reportedly for $2,056, a deal which was brokered by the Indian company's representative Chris Harris. Kayem is not registered with either the DEA or FDA as a foreign pharmaceutical manufacturer or distributor.

Soon Kayem was in the eye of storm as international human rights and anti-capital punishment campaigners took up cudgels against the company. In April 2011, Kayem announced its decision to halt sales of Sodium thiopental to U.S. jails on humanitarian grounds. The company also claimed that it was not aware of the real purpose for which Sodium thiopental was bought, and sacked Harris for breach of trust as he failed to reveal the intended purpose of the drug.

In November 2011, the Nebraska Department of Correctional Services announced that it had purchased 485 grams of Sodium thiopental in two batches with expiration dates of May 2013 and December 2013, manufactured by Swiss pharmaceutical company Naari AG to be used in capital punishment procedures in Nebraska.

When this news came to the notice of Naari, its CEO wrote to the Chief Justice of Nebraska Supreme Court clarifying that his company did not supply Sodium thiopental directly to the NDCS. Naari said that it had supplied samples of the drug to a middleman named Chris Harris with the intention of getting the product registered in Zambia and then begin selling it there, since Sodium thiopental is used very widely as an anesthetic in the developing world.

But instead of providing the drug to Zambian officials, Harris sold it to the NDCS for $5,411. Enraged by the diversion from the drug's intended purpose, Naari in its letter had requested that the drug be returned to it.

Unless a lower court challenge over how Nebraska obtained Sodium thiopental is resolved, the execution of Michael Ryan cannot take place, according to the Supreme Court's order dated February 23, 2012.

Aside the fact that there have been dicey procedural missteps in procuring Sodium thiopental by some states, they are also perilously close to running out of Pentobarbital - the substitute for Sodium thiopental, given the restrictions placed on its distribution.

If Pentobarbital inventory also dries up, the states will have to find an alternative drug, and for now, little is said about what other drugs the prison officials are considering.

But for anti-death penalty campaigners, who want capital punishment to be replaced by life without parole, dwindling supplies of Pentobarbital are very welcome news.

by RTTNews Staff Writer

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