Cruel and unusable

NO ONE is arguing that Joseph Franklin is innocent. He claims to have shot and paralysed Larry Flynt, the publisher of Hustler, because he was outraged at the pornographic magazine’s depiction of a black man with a white woman. He admits to having murdered at least 15 people: some because they were black, some because they were Jewish. He is scheduled to die in Missouri on November 20th for a murder he committed in St Louis in 1977.

The execution may not go as planned, however. It was to have been carried out with propofol, a common anaesthetic. But Fresenius Kabi, the German drugmaker that supplies 90% of the propofol used in America, insists that it must not be used for capital punishment. When the firm learned that Missouri's Department of Corrections had obtained an unsanctioned batch, it curbed shipments. Had the drug been used for an execution, EU sanctions would have kicked in, and this might have caused shortages in hospitals.* The state had to return the drugs and a planned execution was delayed.

On October 22nd Missouri announced that from now on it will kill the condemned with a different drug, pentobarbital. But this is also tricky. The drug firm that makes the form of pentobarbital approved by the Food and Drug Administration (FDA) bars distributors from selling it to prisons.

Getting hold of drugs for executions is growing harder. Pentobarbital was introduced as an alternative to sodium thiopental, a barbiturate used alone or in combination with two other drugs for executions—and not for much else. The EU restricts its sales. Britain bans its export. Its American maker stopped making it in 2011.

Shortages call for creative solutions. As old stocks expire, several states have turned to “compounding pharmacies”—speciality suppliers that mix their own drugs from the raw active ingredients—to obtain new drugs. This is how Missouri plans to get hold of pentobarbital.

Yet using such rough-and-ready suppliers is controversial. In 2006 the FDA examined a sample of drugs from compounding pharmacies and found a third of them unusable. In past years up to a quarter of samples have failed state tests in Missouri, though failure rates have fallen recently. Contamination at a compounder in Massachusetts caused a deadly meningitis outbreak last year.

Some opponents of the death penalty argue that because drugs from compounding pharmacies could be impure or the wrong potency, they might cause the condemned man to suffer as he dies. And that, they say, would violate the constitutional ban on “cruel and unusual” punishments.

* Clarification: We originally failed to describe how EU sanctions would kick in as a result of the use of the drug for an execution.