If lethal injection is torture, who's responsible?

Missing from that report – and most others – was the reason why states are using new drug mixes obtained through unconventional means: Since the U.S. Supreme Court upheld Kentucky’s three-drug lethal-injection protocol as constitutional in 2008, death penalty opponents have used every trick in the book to make the drugs disappear.

Of course, before the big bench’s 7-2 ruling, lawyers for death row inmates had argued that the three-drug protocol violated convicts’ constitutional protection against “cruel and unusual punishment.” The remote possibility – a 0.001 percent chance – that an inmate might suffer unduly prompted federal Judge Jeremy Fogel to halt California’s three-drug executions in 2006; despite the Supreme Court ruling, there hasn’t been one since.

After the big bench affirmed the three-drug protocol, activists went after suppliers. The European Union threatened to ban the export of sodium thiopental to the United States. European producers stopped making it. U.S. manufacturer Hospira did too.

That’s when states started experimenting and scrounging for “untested” drugs.