If Kentucky is to continue executing Death Row inmates, it must find a new source of a drug used in lethal injections or revise the rules to substitute another drug.
The state has lost its supplier of sodium thiopental, an anesthetic used in executions.
Changing the mix of drugs used in an execution would require revising state regulations, a process that would take time and open the door for challenges by defense attorneys and anti-death penalty advocates.
The changes and challenges could take much of the year to resolve, said the Rev. Pat Delahanty, chairman of the Kentucky Coalition to Abolish the Death Penalty.
Sign Up and Save
Get six months of free digital access to the Lexington Herald-Leader
"I don't think there'll be executions in 2011" in Kentucky, Delahanty said.
Hospira, a Lake Forest, Ill., company, announced last week it would not resume production of sodium thiopental.
Kentucky and other states use the chemical as the first one injected during an execution, to render the condemned person unconscious, followed by two other drugs to stop the inmate's breathing and heart.
Hospira was the only U.S. provider of sodium thiopental, which nearly all the states with the death penalty use in executions, said Richard Dieter, executive director of the Death Penalty Information Center.
The announcement caught officials in Kentucky and elsewhere by surprise.
"Hospira repeatedly told us that the drug would be available in the first quarter of this year," said Lisa Lamb, spokeswoman for the state Department of Corrections. "Since their announcement, we are gathering information on the availability of the drug and are exploring our options."
The state searched unsuccessfully last year for another source of sodium thiopental.
Dieter said he thinks most states will switch to another anesthetic for the executions.
Kentucky's execution regulation, however, specifies the use of sodium thiopental in combination with two other drugs.
That means if the state substitutes another anesthetic or switches to using a single drug, as some states are considering, it would have to put a new regulation into effect.
Dieter said he expects executions to slow down across the nation as states make changes and, inevitably, face lawsuits by death-penalty opponents.
"It's going to take some months, maybe a year" to resolve the issues, he said. "Everywhere, there's going to be challenges."
The inability to get sodium thiopental won't immediately delay any executions in Kentucky. The state is under a court order not to carry out executions.
That order came in a challenge to the state's attempt to execute Gregory Wilson last September.
Wilson was convicted of kidnapping, raping and killing Debbie Pooley, 36, in Northern Kentucky in 1987.
After Gov. Steve Beshear set Wilson's execution for Sept. 16, Wilson's attorneys joined a challenge to the state's execution protocol by other Death Row inmates.
Franklin Circuit Judge Phillip Shepherd ruled that the regulation spelling out how the state will execute someone conflicted with state law.
The judge also said the protocol 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 Wilson's mental capacity showed he was retarded.
Shepherd issued an order barring the state from executing anyone.
The court fight over that order continues.
It will be resolved eventually, however, and state officials on both sides of the death-penalty issue are trying to figure out how to respond to difficulties in getting sodium thiopental.
"The question will be, what process do we have going forward?" said Tim Arnold, a supervisor at the state Department for Public Advocacy.
Some states have explored getting sodium thiopental from other countries.
That would raise a concern about the quality of the drug from foreign sources, Arnold said.
Kentucky has not looked to foreign sources for the drug in the past, said Jennifer Brislin, spokeswoman for the state Justice and Public Safety Cabinet.
Shelley Johnson, spokeswoman for state Attorney General Jack Conway, said four Death Row inmates are at the stage in their appeals that Conway could ask Beshear to set execution dates 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.
Johnson declined to identify the fourth man.
Death-penalty opponents hope the shortage of sodium thiopental for executions will create momentum for their call to end executions.
"Lacking the drugs to carry out the death penalty is added evidence that the system is broken," said Delahanty. "Finding another drug, which would require going through the whole regulatory process again, and wasting taxpayer dollars on more litigation, would be the wrong way to go and continue to undermine the credibility of our justice system."
Delahanty said the state law allowing life without parole is enough to protect the public and punish heinous murderers.
Others, however, noted that many people support the death penalty.
States will continue to look for sources of drugs to carry out executions, said Dieter.
"I don't think this is the end of the death penalty," he said.