Uncertainty looms over death row executions as lethal injection drugs dwindle

SALT LAKE ⁢CITY — Alabama executed an inmate Thursday using nitrogen ‍gas.

The inmate, Kenneth Eugene Smith, ⁤was‍ convicted of murdering ⁤Elizabeth Sennett for ​$1,000. The jury recommended a sentence of ⁤life without the possibility⁤ of parole. ⁣The judge overrode the recommendation and⁢ sentenced Smith to death, ⁤according to court documents.

The state ‌of Alabama attempted to execute Smith via lethal​ injection on Nov. 17, 2022, but officials called off the⁣ execution after they could not find a suitable⁣ vein ‍to administer the drugs.

As for the execution scheduled for Thursday, Smith filed ​a motion for⁢ a preliminary injunction claiming that this scheduled execution via nitrogen hypoxia would violate the First, Eighth⁢ and 14th amendments of the U.S. ‌Constitution along ‌with ‍the Religious Land Use and Institutionalized⁤ Persons Act and ⁤the Alabama Constitution’s ‌Religious Freedom Amendment.

Last week ‍in U.S. District‌ Court for the Middle District of Alabama‍ Northern ⁢Division, District Judge ⁣R. Austin Huffaker Jr. ruled the execution ‌would⁣ go forward. The Supreme Court declined to​ stop the execution on ⁣Wednesday.

Nitrogen hypoxia has⁢ never been used in a U.S. execution, the New York Times reported.

“Under this‌ method, which has been used in assisted suicides in Europe, Mr. Smith will be fitted with a mask and administered a‌ flow of nitrogen gas, effectively depriving him of oxygen until he dies,” Nicholas Bogel-Burroughs ⁣wrote for the Times.

The use of nitrogen gas marks a departure‌ from‌ lethal ‍injection, ⁣which⁣ is typically used in U.S. executions. States across the country using ‌lethal injection ​”have encountered various problems with the execution method, including difficulty finding usable veins, needles becoming disengaged or problems‍ (sourcing) or using the lethal​ chemicals,” the Associated Press⁢ reported.

States’ difficulty with finding lethal injection drugs have impacted legislation and ‍practice​ of capital punishment.

Idaho⁤ passed HB186⁤ in March of last ‌year, which said if the director ​of the Idaho Department of Correction determines that lethal injection is not ⁤available in the state, then⁣ the state can use firing squad as‍ its ⁣method of execution. Other states that‌ allow for the use of ⁣the firing squad include⁢ Mississippi, Oklahoma, Utah and South Carolina. If an inmate in Utah was convicted before 2004, the inmate could choose to die by ‍lethal injection or firing squad, while lethal injection is ⁤set to be used ‍for inmates convicted since then.

When Idaho Gov. Brad Little ‌signed⁣ the bill establishing the firing squad as a potential execution method, he sent a letter to‍ House Speaker Mike Moyle, stating, “I have not given up on the state’s ability to ⁤acquire the chemicals.”

‘A critical drug’

Idaho had scheduled the ⁣execution of Gerald Pizzuto for Dec. 15, 2022. The execution was delayed after the state​ could not source the necessary ⁤chemicals.

“While our efforts to secure chemicals‍ remain ongoing, I have no reason to believe our status will change prior ⁤to the​ scheduled execution on Dec. 15, 2022,”⁢ Josh Tewalt, Idaho Department of Correction director, wrote in a letter obtained by the ⁤Idaho⁢ Statesman. “In my ‌professional⁤ judgment, I believe‍ it is in ⁢the best interest of justice to allow​ the death warrant to expire and‌ stand down our execution preparation.”

Idaho isn’t alone in having difficulties obtaining lethal ‌injection drugs.

Deborah Denno, a Fordham University law professor, said the nation has dealt with ‍a ‍lethal⁤ injection drug shortage since around 2010.

“The first drug, which was the source of this shortage, is‌ called sodium thiopental,” Denno said in a phone ⁢interview. “And it’s a critical drug, all‍ of the three are, but⁢ the first⁣ drug⁣ is particularly critical because ⁢it renders the inmate‌ unconscious.”

‘Executing​ states must now go underground’

Sodium thiopental was ⁤recommended ‌for lethal ‍injections. One manufacturer primarily ⁤made the drug and eventually stopped manufacturing it, Denno said. “When that manufacturer was ‍no longer making it and ⁣they really no longer had access to the chemicals to make it, it really threw a wrench into the lethal injection process that no one had ever predicted.”

When Hospira⁤ stopped producing the drug, the American Society ⁢of Anesthesiologists issued​ a letter saying⁢ the society⁢ was “extremely troubled” ​that the drug was taken off the market. “The ASA ‌certainly does not condone the use‌ of sodium thiopental for capital punishment,‌ but we also do‌ not condone‌ using the ⁤issue as the basis to place undue burdens on the distribution of this critical drug to the United States,” the letter stated.

Turning⁣ to different countries and compounding pharmacies, Denno said states tried​ to obtain the drug⁤ or ​they would use‌ an alternative ​drug.⁢ Pentobarbital and midazolam are alternative‍ drugs used.

In addition to the drug ⁤shortage as related ‍to sodium thiopental, another issue arose — in 2016, Pfizer blocked ⁤the sale of its products for executions.

“With Pfizer’s announcement, all FDA-approved manufacturers of ⁢any ⁢potential execution drug have‍ now blocked their sale for this purpose,” Maya Foa, who tracks​ drug companies for Reprieve, ‍told the New York Times following⁣ the announcement. “Executing states must now go underground if ⁢they want to get ​hold of medicines for use ‌in lethal ⁢injection.”

Federal⁢ death penalty

Though lethal injection is the execution method most commonly used in the U.S.,‍ the rate⁢ of botched executions in recent years has been ‍high, said⁤ Denno, pointing to‍ a report from ​the Death Penalty‌ Information Center which found ​that more than one-third of executions in 2022 were botched.

In its report, the Death Penalty ​Information Center quotes Austin Sarat, professor of jurisprudence and political science at Amherst College, defining ⁤botched executions as “those involving unanticipated problems or delays that caused, at least arguably, ‌unnecessary‌ agony for the prisoner⁣ or that⁣ reflect gross incompetence of the executioner.”

As states experience difficulties ⁢with botched executions, inmates surviving ‌execution attempts and the⁣ ability to source drugs, Denno said some states are looking toward the firing ‍squad and other states​ are⁤ considering abandoning the death penalty altogether.

Twenty-seven states retain the death penalty‍ and 23 states have abolished it, according to the Death Penalty Information Center.⁢ The ‌federal government also retains the death penalty.

The Justice Department recently indicated that it would seek the death penalty for ​the man who⁢ carried the racially motivated shooting in May 2022 at a⁤ Tops Supermarket in ​Buffalo, New York. “United States ⁢believes the circumstances in counts 11-20 of the indictment are such ⁣that, ⁢in the event of ⁢a conviction, ‌a sentence of death is justified,” the court filing said.

The shooter was already sentenced to life without parole in New York, but the‌ Department of Justice is seeking the death penalty on federal chargers the ‍man faces. This ⁤is⁣ the first ​time that the Department of Justice ​under President Joe‌ Biden has sought the death penalty in ‍a new case.