This investigation was reported by Maurice Chammah for The Marshall Project, a nonprofit news organization. You can sign up for their newsletter, or follow The Marshall Project on Facebook or Twitter.
When Ohio officials announced last Thursday that they were abandoning the state’s two-drug execution protocol — which led to a botched execution last year — they also declared that they intend to reintroduce two drugs previously used in executions, pentobarbital and sodium thiopental.
Pentobarbital is an anesthetic that Texas and other states have used in dozens of lethal injections. It’s easy to get, and corrections departments around the country have gotten it from compounding pharmacies, small unregulated businesses that make drugs to order.
Compounding pharmacies might also be making sodium thiopental, but nobody knows for sure, since they are not subject to FDA oversight. “As far as I know, there is no valid FDA-approved version of thiopental available in this country,” says David Waisel, a Harvard anesthesiologist who believes that if executions are going to happen, doctors should be involved to minimize pain. “We can’t get it clinically.”
In low dosages, sodium thiopental has been known to lower inhibitions, and was used as a “truth serum” by spy agencies, usually in the movies but sometimes in real life. In high dosages, it offers a reliable means of killing inmates without the ghastly scenes that attract scrutiny from attorneys, reporters, and the public last year.
Reliable, in theory. Since the source and quality of the drugs are cloaked in secrecy, little can be known about them. And if Ohio has indeed found sodium thiopental — which is widely known to be difficult to come by — it raises the possibility that the state has found an unorthodox method of procurement, calling to mind the days when prison officials made handoffs of execution drugs and paid unregulated compounding pharmacies in cash.
And their secrets are better kept than ever before.
Late last year, Ohio lawmakers passed one of the strongest measures in the country to protect pharmacies who provide drugs for lethal injections from having their names divulged in court. The secrecy provisions mean that in the wake of Ohio’s Thursday announcement, anesthesiologists and lawyers are flummoxed as to where the state is getting sodium thiopental, since there is no known U.S. manufacturer. That’s been true since 2011, when the sole U.S. maker of sodium thiopental, Hospira Inc., stopped providing the drug for use in executions due to government opposition in Europe, where the drug was actually being produced. The move set off a scramble by states to devise and implement new drug cocktails in their executions.
So where is the drug coming from?
The most likely source is a compounding pharmacy, says Deborah Denno, a professor at the Fordham University School of Law who works on lethal injection issues. Due to Ohio’s secrecy provisions, there is no independent check that the compounding pharmacy will make drugs that will work effectively — that they won’t cause an inmate pain and suffering, thus strengthening legal challenges to the protocol, or even fail altogether, leaving the inmate stunned but alive. “Many [compounding pharmacies] are very good, but some are not,” says Waisel, “and there’s a great deal of secrecy, so we can’t know the pharmacy’s track record.”
Still, there are other possibilities. "Given that there’s so much opacity about the provenance of the drug, and given that thiopental has near-ubiquitous, near-worldwide usage for clinical,veterinary and research purposes,” says Mark Heath, a Columbia University anaesthesiologist, “one could envision that the Ohio Department of Rehabilitation and Corrections could be obtaining [the drug] from any of a wide range of sources, including perhaps sources that would not withstand scrutiny from United States courts or regulatory agencies."
That could be veterinary suppliers, Heath says. Sodium thiopental is also approved for use in animal euthanasia, and under current secrecy laws Ohio officials could get the veterinary version of the drug and nobody would know the difference.
Or maybe they’re using a different drug altogether.
Heath speculates that Ohio authorities could use “any number of fatal drugs,” including paralytic agents, which have only been used together with other drugs, but can be lethal on their own in high dosages.
The use of a paralytic, Heath says, “would result in an execution that looks serene and peaceful to the witnesses, while the prisoner would be undergoing chemically entombment and torturous death by slow suffocation.”