An Arkansas judge on Monday ruled that part of the state's law governing executions is unconstitutional. The provision in state law allowing "any other chemical or chemicals" to be used for lethal injections violates [AP report] the constitution's protection against cruel and unusual punishment, Pulaski County Circuit Judge Tim Fox said. The Arkansas Department of Correction [official website] relinquished its supply of sodium thiopental, a drug used in the lethal injection process, after coming under fire for obtaining the drug from Dream Pharma [corporate website], a British pharmaceutical company. The state was forced to purchase sodium thiopental overseas [AP report] after the sole US manufacturer of the drug stopped production. Legal challenges followed, prompting Fox to rule that the corrections department must follow state law to obtain the drug. Attorney General Dustin McDaniel had argued last week [AP report] that the part of the lawsuit challenging the use of the drugs at issue was moot. Fox's decision is expected to be appealed to the Arkansas Supreme Court.
The shortage of sodium thiopental in the US has caused several states to modify lethal injection protocol, which has led to a number of constitutional challenges by death row inmates. In March, two Texas inmates requested stays on their executions [USA Today report] to obtain more information on the new protocol and possibly challenge the protocol as unconstitutional. Texas acknowledged that its supply of sodium thiopental had an expiration date of March 1. Arizona, Georgia and Oklahoma have faced similar challenges and are seeking to substitute the sodium thiopental used in the lethal injection "cocktail" with pentobarbital. Kentucky and Tennessee surrendered supplies of sodium thiopental [NYT report] to the Drug Enforcement Administration (DEA) [official website] after the agency seized Georgia's supply in order to investigate whether the drug was properly imported. In September, the US Court of Appeals for the Ninth Circuit [official website] ordered [text, PDF] a district court judge to reconsider the stay of execution [JURIST report] in the case of Albert Brown. The court noted that the timing of Brown's execution was influenced by the expiration of the state's supply of sodium thiopental, and stated that it was "incredible to think that the deliberative process might be driven by the expiration date of the execution drug."