State acquires key drug used in executions

But no executions expected any time soon

bestep@herald-leader.comFebruary 23, 2011 

Kentucky's execution chamber is at the Kentucky State Penitentiary in Eddyville.

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The state has acquired enough of a key drug used in executions to put three condemned inmates to death.

Kentucky and other states have had to look for other sources of the drug, an anesthetic called sodium thiopental, after the sole U.S. maker said in January it would not resume production.

The Justice and Public Safety Cabinet announced Tuesday the state had bought 18 grams of the drug from CorrectHealth, a Georgia correctional health care company.

Under state rules, each execution requires 3 grams of sodium thiopental, with three additional grams ready as a backup, said Jennifer Brislin, spokeswoman for the cabinet.

That means the 18 grams the state got at a price of $1,616.83 is enough to execute three inmates.

But because the state now has some of the drug does not mean executions will resume soon.

That's because an injunction remains in place barring the state from executing anyone.

It's also likely there will be a challenge to the use of the sodium thiopental the state has gotten because it came from outside the U.S.

The drug was made by Sandoz GmbH, an Austrian company, according to the Justice and Public Safety Cabinet.

"I would feel certain that someone is going to challenge that," said Rev. Pat Delahanty, chairman of the Kentucky Coalition to Abolish the Death Penalty.

Such a challenge could forestall executions in Kentucky while it was pending.

Richard Dieter, head of the Death Penalty Information Center, said other states have challenged the use of sodium thiopental from overseas sources.

What's at issue, Dieter said, is "Who's supposed to oversee the purity of it?"

However, Dieter said that to his knowledge no state court had barred the use of the drug in those instances, though two states — Oklahoma and Ohio — have moved to use another drug instead.

The sodium thiopental the state got from the Georgia company won't expire until May 2014, which could provide time to resolve potential challenges.

Gov. Steve Beshear directed J. Michael Brown, secretary of the Justice and Public Safety Cabinet, "to conduct an exhaustive and comprehensive search for any and all sources of sodium thiopental, both domestically and abroad," according to the statement from the cabinet.

Kentucky took delivery of the 18 grams from Georgia last week after checking in several other states.

Kentucky and many other states use sodium thiopental as the first drug injected during an execution — to render the condemned person unconscious — followed by two other drugs to stop the inmate's breathing and heart.

If the state had not found a new supply of sodium thiopental, it would have been required to change its execution rules to specify use of another combination of drugs or of a single drug.

However, there has been no discussion of changing the execution rules, Brislin said. Those rules, called the execution protocol, are the subject of a pending challenge.

After Gov. Steve Beshear scheduled Gregory Wilson to be executed last Sept. 16, Wilson's attorneys joined a lawsuit by other Death Row inmates challenging the rules.

Wilson was convicted of kidnapping, raping and killing Debbie Pooley, 36, in Northern Kentucky in 1987.

Franklin Circuit Judge Phillip Shepherd ruled there were several problems with the protocol, including that it doesn't include adequate safeguards to prevent executing a person who is mentally retarded, which is against the law.

Wilson's attorneys have argued the only known test of his mental capacity showed he was retarded.

Shepherd issued an order barring the state from executing anyone. The Department of Corrections and the state Attorney General's Office have challenged that order.

It is unclear when the case will be resolved.

A spokeswoman for the Attorney General's Office has said there are several inmates whose appeals have reached the point that Beshear could issue an execution order for them.

They include Wilson; Ralph Baze, who was convicted of killing Powell County Sheriff Steve Bennett and Deputy Arthur Briscoe in 1992 as they tried to arrest him; and Robert Foley, convicted of murdering six people in Laurel County in two separate cases.

Marija Mandic, a spokeswoman for Sandoz, which made the sodium thiopental Kentucky got by way of Georgia, says the company has advised its subsidiaries not to export or sell the product to the U.S., or to supply it to distributors or others who night sell it in the country, Mandic said.

Mandic's statement suggested the company does not approve of its product being used in executions.

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