Two recent decisions raise new questions about the ability of states to legally and humanely carry out executions using lethal injection. On December 20, 2011, the European Union announced new restrictions on the export of drugs used for lethal injection in the United States. And on December 9, 2011, a California judge ruled that the state's lethal injection protocol was invalid.
Last week, the European Union announced that it added eight drugs, including pentobarbital and sodium thiopental, to its list of restricted products on the grounds that they may be used for "capital punishment, torture or other cruel, inhuman or degrading treatment." Pentobarbital and sodium thiopental are the drugs on which many American executions currently depend. Because the European Union’s decision effectively makes the export of these drugs a violation of EU law, and because there is a shortage of the drugs in the United States, it will now be harder for state officials to replenish their supplies or replace expiring drugs.
Many states have had difficulty in obtaining drugs to use for lethal injection. In April of this year, for example, the U.S. Drug Enforcement Agency seized Alabama’s supply of sodium thiopental because it had been improperly obtained. [1] The European Union’s decision could also force states to consider finding alternative drugs, a complicated process that could lead to a new legal challenges.
In addition to the European Union’s announcement, there was a development on December 9th in California, where a judge decided that the state’s lethal injection protocol is invalid. The judge based its determination on the fact that the state did not follow the law in creating its current lethal injection procedure. This decision, combined with the restriction on the export of lethal injection drugs from Europe, raises questions about the ability of states to legally and humanely carry out executions.