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Will Lethal Injection Survive Drug Shortages?

Virginia’s governor has a new plan to preserve lethal injection, but the end of capital punishment in the state may be imminent.

Virginia Governor Terry McAuliffe announced this week that he would veto a bill allowing the state to execute inmates on death row via electric chair in the event that lethal injection drugs are unavailable — unless the legislation included an amendment to shield the identities of lethal injection drug manufacturers. McAuliffe’s proposed addition to the amendment would help compounding pharmacies that make lethal injection drugs avoid backlash from capital punishment opponents, and help the state secure a steady supply of the dwindling resource.

The secretive solution up for consideration in Virginia is just the latest strategy death-penalty states have introduced to keep capital punishment on the table. As Nick Welsh reported for Pacific Standard in 2012, lethal injection has been plagued by moral and medical obstacles since it was introduced.

Lethal injection emerged in the 1980s as a more humane alternative to the brutality of firing squads, gas chambers, and the electric chair. Today, it is the main way that capital punishment is carried out in the United States. The lethal injection process was developed in 1977 by Jay Chapman, the chief medical examiner in Oklahoma at the time, and was originally a three-drug protocol — sodium thiopental to knock out those sentenced to die, pancuronium bromide to paralyze the muscles and halt breathing, and potassium chloride to stop the heart.

From the beginning, botched executions due to fumbled injections or improperly mixed solutions plagued the protocol. “[C]ritics have claimed the drugs can cause excruciating pain, and have cited reports likening the feeling to that of a liquid flame-thrower,” Welsh wrote. But it was a shortage of one of the killer cocktail’s main ingredients that ultimately forced states to change tactics, he reported:

Companies that manufacture the fast-acting anesthetic sodium thiopental — a key ingredient — no longer produce it in the United States. European manufacturers, citing moral and political concerns with capital punishment, have refused to sell the drug to prison administrators in the United States. Now state executioners are in a desperate scramble to obtain supplies from other foreign sources. U.S. hospitals are experiencing collateral difficulties, reporting shortages of the drug. And earlier this year, Federal Judge Richard Leon ruled that the Food and Drug Administration could not allow sodium thiopental to be imported.

Even as the number of executions nationwide declined from a peak of 98 in 1999 to just 28 in 2015, more and more states, including Kentucky, Texas, Missouri, and Virginia, began administering single-drug executions using powerful sedatives such as pentobarbital. But even if McAuliffe’s amendment is approved by the state’s legislature, shortages of these sedative drugs may finally put an end to capital punishment in Virginia — the state with the third most executions since the death penalty was reinstated in 1976. The Washington Post reported:

Arkansas, Missouri and Ohio are among the states that have placed similar shields over the pharmacies that produce lethal drugs and have faced lengthy legal challenges in state and federal courts. In Arkansas, which hoped to resume executions after a decade-long break, the legal challenge has delayed several lethal injections scheduled to take place last fall and winter.

But if McAuliffe’s plan is shot down by the legislature, the state will be left with a short supply of pentobarbital and no sanctioned, alternative execution methods. “All I’m doing today is providing a humane way to carry out capital punishment here in Virginia so we have options,” McAuliffe told the Post. “If they do not take it up, I want to be clear, they will be ending capital punishment here in Virginia.”