Indiana Learns Medicine Doesn't Work on Lethal Injection's Timeline

Indiana governor Mike Braun announced that the state would be throwing away more than $600,000 worth of now-expired pentobarbital ordered for the state’s death chamber. The state switched to pentobarbital last year in order to carry out its first execution since 2009; the three-drug formula then in use by nearly every state had been compromised by manufacturers’ refusal to provide the sedative, sodium thiopental.

The issue brings to light one of lethal injection’s enduring controversies, and perhaps its terminal one: killing someone by law doesn’t—can’t—operate on the logic of medicine.

The Ugly Business of State-Sponsored Drug Overdose

As we’ve covered before, lethal injection uses the same names you might hear about in the hospital or the ambulance, but to call them “the same drugs” is a bit misleading. (And according to the first Trump administration, they aren’t even “drugs'“ at all.) Drug companies have waged a long and expensive war to keep their product out of the execution chamber. While states don’t have to disclose how they acquire their execution drugs, most have turned to “compounding pharmacies” at one point or another. Compounding pharmacies typically operate by manufacturing drugs to order for patients who can’t take the commercially available formulation (common reasons include allergies and difficulty swallowing oral medications). While these facilities undoubtedly serve a critical need in our medication supply chain, their specialized focus also allows states and the federal government to bypass the regulatory scheme expected of normal drugmakers. Roughly 180 facilities in the United States have received (voluntary) accreditation from the leading pharmaceutical board, which sets standards for training, equipment and quality control. (By contrast, there are more than 8,000 pharmacies permitted to compound and sell drugs to Florida patients.) This questionable standard enforcement has had unintentional deadly consequences: a Massachusetts facility killed more than 60 people after a fungal meningitis outbreak linked to its shipment of a popular corticosteroid.

Starting from that lowered bar, states then have to find a manufacturer willing to take on the reputational risk of selling execution drugs—as we learned last year, the secrecy mandates enacted by state and federal prison officials aren’t impervious to intrepid journalism. While it’s nigh-impossible to know where each individual state gets its drugs, reporting on the federal government’s former supplier revealed a partnership based more on entrepreneurial spirit than expertise. (To their credit, the drug compounding mainstream doesn’t appear to be any more on board with assisting capital punishment than traditional manufacturers.) An investigation revealed that Missouri’s pentobarbital supplier had been deemed “high risk” due to multiple, serious hazardous practices; similar problems emerged with a Texas chain.

All of this leads to a product with severe shelf life concerns. While legitimately produced pentobarbital can have a shelf life of up to three years, lethal injection suppliers can only guarantee 45 days (if frozen, which one state notably didn’t do). In legitimate medicine, drug expiry is not always the end of the line—not too long ago, the Ohio Board of Pharmacy even gave pentobarbital a nine-month extension to combat a shortage in the veterinary world (where it’s the preferred euthanasia option). Questionable manufacturing practices, however, make fudging with expiration dates far less desirable for states that want at least the appearance of a quiet death.

Death Penalty Procedure: Fair or Quick—Pick One

Much is made of the long timeline between when a person receives a death sentence and when it’s actually carried out, but it’s crucial to the American death penalty project’s opinion of itself. When several states brought back the death penalty from its Furman v. Georgia-imposed moratorium, they did so on a promise to root out arbitrariness via convoluted new procedures that would ensure relief for any legitimate complaint raised by a person facing execution. While there’s more than quibbling to be done about whether or not we’re really doing that, even the pretense of doing so requires a significant amount of post-conviction litigation. Much of this happens in an already overburdened federal court system, subject to delays for any number of procedural, logistical or human reasons. Even if a date is set and an execution warrant signed, it can’t be expected that an execution will take place within the very narrow time frame of drug viability.

Is This Another Nail in Lethal Injection’s Coffin?

Braun seems understandably frustrated, and recent quotes suggest he’s ready to rethink both whether and how the state will kill people in the future: “I’m going to encourage the state legislature to look at it — in terms of, is that what we’re going to use, and then on the issue itself…I’m very agnostic on that.”

Earlier this year, I suggested we might be seeing a rethinking of lethal injection, on logistical if not on humanitarian grounds. Method-agnostic laws are on the rise, even as reimagined methods appear to have the same dismal record as lethal injection. States appear eager to jettison the hassle and hypocrisy sprung from our 500-year quest for that quiet death; perhaps, as Braun suggests, they’ll at least be open to considering what the end of that search means.