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Lack of sodium thiopental makes lethal injection challenge moot

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A challenge to Missouri’s practice of lethal injection is moot because the state has run out of the drug used as an anesthetic and can’t obtain any more, a federal appeals court said Monday.

The suit had been brought by a group of death row inmates who alleged that they suffered a risk of severe pain during executions because the state uses nonmedical personnel to administer the lethal drugs in a manner not approved by the Food and Drug Administration or the drugs’ manufacturers.

Missouri uses a “cocktail” of drugs to administer the death penalty: sodium thiopental, which renders the prisoner unconscious; pancuronium bromide, which relaxes his muscles; and potassium chloride, which stops his heart.

The state’s stock of sodium thiopental, however, expired more than a year ago, and the drug’s domestic manufacturer, Hospira, doesn’t make it anymore. And in March, the U.S. District Court for the District of Columbia blocked importation of foreign-made sodium thiopental into the United States.

“The [Missouri Department of Corrections] is unable to carry out the challenged protocol as written, and it appears unlikely it ever will,” Chief Judge William Jay Riley wrote. Judges Lavenski R. Smith and Bobby E. Shepherd concurred.

According to the 8th Circuit’s opinion, the Department of Corrections has not yet found a substitute anesthetic. Despite the plaintiffs’ urging, the court declined to weigh in on the constitutionality of Missouri’s lethal injection methods, saying the claims were tied to the specific drugs used.

“While any replacement drug the DOC might obtain may be similar — it also may not,” Riley wrote. “We cannot know until the drug is acquired.”

The last Missouri inmate to be executed was Martin Link on Feb. 9, 2011. Another inmate, Michael Andrew Tisius, is scheduled to be put to death on Aug. 3, according to an order issued last week by the Missouri Supreme Court. But it’s not clear if the state has the drugs it needs to carry out the execution.

A Department of Corrections spokesman, Chris Cline, didn’t immediately respond to a request for an update on the state’s lethal injection protocol.

The appeals court vacated U.S. District Judge Nanette Laughrey’s underlying district court decision, issued last August. Laughrey had granted summary judgment in favor of the state, ruling that the plaintiffs lacked standing because there wasn’t evidence that any previously executed prisoners had actually suffered the injuries the lawsuit claims could happen.

Joseph Luby, an attorney with the Public Interest Litigation Clinic in Kansas City, said he was studying the 8th Circuit’s opinion and declined to immediately comment. Nanci Gonder, a spokeswoman for the Missouri Attorney General’s Office, declined to comment.

The case is Ringo et al. v. Lombardi et al., 11-2839.

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