Oklahoma Drug used in Okla. execution could gain wider use Two inmates have argued use of pentobarbital is inhumane

By Sean Murphy

Associated Press

MCALESTER, Okla. (AP) -- A sedative Oklahoma used to execute a death row inmate that is commonly used to euthanize animals could become more popular because of a nationwide shortage of a key ingredient in several states' lethal injection formulas, death penalty experts say.

John David Duty is believed to be the first person in the United States whose execution included the use of pentobarbital. The 58-year-old was pronounced dead at 6:18 p.m. Thursday at the Oklahoma State Penitentiary.

Oklahoma and several other states traditionally have used the barbiturate sodium thiopental to put an inmate to sleep, followed by two other drugs -- pancuronium bromide, which paralyzes muscles, and potassium chloride, which stops the heart.

But Hospira Inc. -- the only U.S. manufacturer of sodium thiopental -- said last week that new batches of the drug could be available "in the first quarter" of next year. They blamed the shortage on problems with its raw-material providers.

"It's a little uncertain if sodium thiopental will be available, so the states will be looking at what's happening in Oklahoma," said Richard Dieter, executive director of the Death Penalty Information Center. "If it works reasonably well, other states might go that way."

Oklahoma prisons spokesman Jerry Massie said after the execution that there did not appear to be any problems with the new drug.

Strapped to a gurney and wearing an eye patch over his right eye, the heavyset Duty apologized to his victim's family.

"I hope one day you'll be able to forgive me, not for my sake, but for your own," Duty said. "Thank you, Lord Jesus. I'm ready to go home."

The lethal drugs began to flow at 6:12 p.m., and Duty's breathing became labored one minute later. At 6:15 p.m., he appeared to stop breathing and the color began to drain from his face.

Duty and two other death-row inmates had challenged the state's decision to use pentobarbital, arguing it could be inhumane because a person could be paralyzed but still aware when a painful third drug is administered to stop the heart. On Tuesday, a federal appeals court upheld a ruling against the other two inmates. Duty did not take part in the appeal.

Executions have been delayed in California, Arkansas, Tennessee and Maryland as a result of protocol changes, including the use of new drugs, Dieter said. In Ohio and Washington, laws were passed to allow for the use of sodium thiopental specifically, he said.

But Oklahoma's law calls for the use of a fast-acting barbiturate to be administered first, which gave the state the flexibility to use pentobarbital, Massie said.

"I think Oklahoma is the only state where this issue has come to a head over a new drug," Dieter said. "The other states haven't been able to do it. It's because the state courts wanted more time to review the overall protocol changes."

Experts testified at a November federal court hearing that no other U.S. state uses pentobarbital during executions. Massie and Dieter both said before Thursday's execution that they believed Duty would be the first U.S. inmate put to death using the drug.

"I have not seen that (pentobarbital) has been used before in this context," Dieter said. But, he noted, "Some states don't say exactly what drugs are used and have kept that out of the public eye."

Dieter also acknowledged that China, which is increasingly favoring lethal injection as a method of execution, may have used the drug before.

Jim Rowan, a capital defense attorney and a board member of the Oklahoma Coalition to Abolish the Death Penalty, was concerned about the lack of evidence on the effects of the use of the drug on humans.

"No one who has been put to death has come back and testified about what it felt like," said Rowan, who gathered outside the governor's mansion in Oklahoma City with about a dozen protesters. The group held a vigil once they learned Duty had been pronounced dead.

At a federal court hearing in November over the use of the new drug, an anesthesiologist testified on video that that the 5,000 milligrams of pentobarbital Oklahoma planned to use is enough to cause unconsciousness and even death within minutes, and even a defense expert testified that amount of pentobarbital would be fatal.

Duty pleaded guilty to first-degree murder in the 2001 slaying of 22-year-old Curtis Wise. At the time, Duty was serving three life sentences for rape, robbery and shooting with intent to kill.

According to court records, Duty strangled Wise with a sheet.


Associated Press writer Rochelle Hines contributed to this report.

Published: Mon, Dec 20, 2010