At first blush it seems selfish of Texas. It has more than it can reasonably expect to use between now and next March when its current supply is set to expire. On the other hand, Texas thinks sharing would be worse than discovering that, because of unanticipated events, it had run out. The sought after substance is sodium thiopental, the short-term anesthetic that is administered to the condemned inmate before the other two drugs that will eventually provide the inmate with a comfortable transition to the hereafter are administered.
Followers of such things will recall that the U.S. Supreme Court has approved the use of a three drug cocktail to relieve society of its unwanted members, even though the American Veterinary Medical Association (AVMA) prohibits their use when euthanizing animals. Its reason is sodium thiopental, the anesthetic administered when euthanizing living things so they will not feel pain when the two death dealing drugs are administered, is short acting and may have worn off before the remaining two drugs are administered. When that happens the living thing being euthanized may feel excruciating pain.
Unlike the American Veterinary Medical Association, the U.S. Supreme Court is not all that concerned with excruciating pain for people being put to death. As Justice Clarence Thomas observed in the Kentucky case of Baze vs. Rees, the “method of execution violates the Eighth Amendment [ban on cruel and unusual punishment] only if it is deliberately designed to inflict pain” and that is not the purpose of the three drug concoction. It’s just an incidental benefit when things don’t quite go right.
Sodium Thiopental is in such short supply that executions are being delayed. Arizona was planning to execute Jeffrey Landrigan when it learned there was no ST available from Hospira, the sole U.S. manufacturer of the drug. Arizona decided to buy the drug from the British firm, Archimedes Pharma UK , a purchase that upset Mr. Landrigan’s attorneys who tried to block the execution arguing the drug might not be safe for use in an execution. A lower federal court agreed with the lawyers but the U.S. Supreme Court cast that concern aside and Mr. Landrigan was executed in late October. All that would have been unnecessary had Texas not assumed the dog in the manger role.
Since 1974, when the Supreme Court decreed that the death penalty was a respectable member of American society, and until January 1 of 2010, Texas has executed 447 prisoners. It did not achieve that distinguished record by sloppy bookkeeping. It was always prepared and ready with all the tools it needed to maintain its productivity in the death chamber. One of those tools was keeping a good supply of PT on hand. It did not want to embarrass itself as Arizona and other states had done, by finding itself unable to continue its executions because of the absence of PT. Accordingly it has 39 doses of PT on hand, all of which have expiration dates of March 2011. In order to take advantage of its foresight it is going to have to execute 39 of its approximately 333 inmates on death row within the next four months or see 39 doses go to waste. Even for a state as productive as Texas, that is a challenge. Since 1974, the best year it had for executions was 2000 when it executed 40 inmates. There is no way it can use up all 39 doses between now and March given the fact that only 3 executions are scheduled before March 2011. Nonetheless, Texas is unwilling to share any of its doses. When asked about this a spokeswoman for the Texas Department of Criminal Justice said: “We do not have plans to distribute the drug to other states. We have a responsibility to ensure we have an adequate supply of the drug on hand to carry out any executions scheduled in the state of Texas.”
Oklahoma was forced to go to federal court to obtain the court’s approval to use a different drug to proceed with an execution. Arizona went all the way to the U.S. Supreme Court to gain approval of use of the British drug. In August a Kentucky a state judge refused to sign two death warrants because of the unavailability of the drug. Questions have now been raised about the provenance of the sodium thiopental available in San Quentin and executions in that state may have to be postponed because it may have come from England.
It seems a pity that executions in other states must be delayed because of Texas’s stinginess. Texas is probably stingy because it doesn’t want to give another state the opportunity to replace it as Number One in the number of executions performed since 1976. Hoarding the supply of sodium thiopental is a good way of protecting its record. It’s hard to blame it.
CHRISTOPHER BRAUCHLI is a lawyer in Boulder, Colorado. He can be e-mailed at brauchli.56@post.harvard.edu.