Portions of this post first appeared on the Colorado Rights Blog, the blog of the ACLU of Colorado.

The struggle to find drugs to carry out lethal injection has made headlines all over the country and was recently featured on Comedy Central’s The Colbert Report.

Video link no longer available.


Colbert talked about a new Tennessee law “that allows the state to withhold all kinds of information from the public, including the type of drugs the state plans to use.”

“Because if they keep it secret,” Colbert said, “they could use anything. Sodium pentobarbital, sodium and Barbasol, Diet Coke and Mentos, ‘the Cinnamon Challenge.’”

“They will be able to get the drug, either from a reputable licensed pharmacist, or from a guy loitering under the overpass named ‘Spider,’” he added.

Pharmaceutical companies who make these drugs have started to ban their sale for executions, and states are scrambling to find alternatives, with many dangerous consequences.

In Montana, the ACLU of Montana and cooperating attorneys Ron Waterman and Greg Jackson are challenging the state's lethal injection protocol on behalf of death row inmates Ronald Smith and William Gollehon. Most recently we filed a brief in July 2013 calling for the District Court to declare the Department of Corrections new two-drug lethal injection protocol unlawful because it creates an unreasonable risk of subjecting prisoners to cruel and unusual punishment, violates the separation of powers between the legislative and executive branches of government and was not written in accordance with the public participation procedures outlined in the Montana Administrative Procedures Act.

The new execution protocol was written solely by DOC staff without consultation with scientific or medical experts. It leaves open the very real possibility of leaving prisoners aware and in pain as they suffocate to death.

The seriousness of these issues was made very clear this year when other states used new lethal injection drug combinations with disastrous results.

An Oklahoma execution made the news when the prisoner’s last words, after being injected with one of the drugs, were “My whole body burns.”  In Ohio, it took more than 20 minutes to kill an inmate, while he gasped and choked on the execution table.

Now some states are turning to compound pharmacies and other questionable means for getting the drugs they need.  They are masking this practice in secrecy and lawsuits are popping up all over the country in search of public disclosure.

Last year in Colorado, when Nathan Dunlap was scheduled for execution, the ACLU of Colorado filed a lawsuit to determine the state’s planned lethal injection protocol, the drugs that prison officials intended to use, and where those drugs were coming from. Colorado Governor John Hickenlooper, expressing several concerns with Colorado’s broken death penalty system, halted the execution.

Meanwhile, Oklahoma and Texas officials joked about exchanging help for tickets to the OK vs. TX football game. And now Oklahoma is planning to use secretly sourced experimental drugs, despite a court ruling against their use

The Huffington Post has an excellent infographic calling this the “New Costs of the Death Penalty.”
As the nation deals with this lethal injection drug shortage, it is a good time to take a step back and evaluate whether the death penalty should be used anymore.  It is costly, unfairly applied, there is chance that an innocent person may be executed and now, it is hard to even follow through with the punishment.