Inmates cannot be put to death in Oklahoma without information about the drugs that will be used to kill them, a county judge ruled Wednesday. The ruling comes as a shortage of lethal injection drugs has sent states scrambling to find a legal means of executing inmates. A dearth of lethal injection drugs has been driven largely by opposition to the death penalty by international manufacturers and the countries that host those manufacturers.
Without these drugs, states have turned to several controversial alternatives that raise legal and humanitarian red flags. One alternative in several states has been to use small, individually made batches of the lethal injection drugs through what is known as compounding pharmacies. These pharmacies are not regulated by the Food and Drug Administration, meaning there is limited assessment of their safety and effectiveness. While even the FDA acknowledges that pharmacy compounding can serve a useful purpose for those patients with special needs, they have frequently been associated with untested and questionable quality. In fact, a pharmacist providing expert testimony in a recent lawsuit on this issue said the risk of contamination is quite high, and that contaminated lethal injection drugs can lead to severe suffering during execution.
Over the past few years, inmates who were executed using small-batch barbituates from compounding pharmacies reportedly experienced prolonged, gasping periods before they finally died.
These risks are particularly high where the source of the drugs and the way they were made remains secret. But states including Oklahoma and Missouri have refused to reveal the name of the pharmacy that made the drugs, claiming they may be pressured into not distributing the drug for executions because of moral opposition.
“It is unacceptable by any standard to inject an unknown substance into a human subject,” pharmacist Larry D. Sasich said in his affidavit.
In January, a federal appeals court permitted Missouri to execute a man without ever revealing the manufacturer of the drug that killed him. The inmate in the case never had the opportunity to ensure that the drug would not lead to an execution amounting to cruel and unusual punishment, by verifying the reputation of the pharmacy, questioning the testing performed by a state entity that has in the past approved faulty drugs, or assessing how the drug was manufactured.
Oklahoma County District Judge Patricia Parrish came to the opposite conclusion Wednesday, finding that the inmates had a constitutional right to know the source of the lethal injection drugs. “I do not think this is even a close call,” she said, explaining that the law is so broad that even she was not permitted to ask questions about its origin while overseeing the case. This ruling could still be overturned on appeal; lower courts in Missouri also came to this conclusion, before the appeals court reversed the decision. But the decision likely postpones the executions for now of two inmates scheduled to die in April, unless the state finds a legally acceptable alternative.
Other states are responding to the shortage of lethal injection drugs with proposals to revive the gas chamber, electric chair, and firing squads.