Why Is an Inmate Being Executed with Expired Drugs?

By VirentaNews Staff — May 20, 2026

Is it constitutional to execute a person using expired drugs? That’s the urgent question facing courts and human rights advocates as Alabama prepares to carry out the execution of Kenneth Eugene Smith, a death row inmate, using lethal injection drugs past their expiration date. With Smith’s execution scheduled for January 2024, his legal team has filed emergency appeals arguing that using expired pharmaceuticals violates the Eighth Amendment’s ban on cruel and unusual punishment. The case has thrust into focus long-standing concerns about the reliability, transparency, and morality of capital punishment procedures, especially as states struggle to obtain execution drugs due to pharmaceutical companies’ refusal to supply them for lethal injections.

Can Expired Drugs Make an Execution Unconstitutional?

The core legal argument hinges on whether using expired drugs increases the risk of severe pain and suffering during execution, thereby crossing the threshold of cruel and unusual punishment. Smith’s attorneys contend that expired sodium thiopental, one of the drugs in the three-drug cocktail, may degrade over time, losing potency and potentially failing to induce proper unconsciousness before the administration of paralytic and heart-stopping agents. If the inmate is not fully anesthetized, he could experience the sensation of suffocation and burning in his veins without being able to express it. The U.S. Supreme Court has previously ruled, in cases like Baze v. Rees (2008) and Glossip v. Gross (2015), that execution methods must not pose a “substantial risk of serious harm.” Legal experts argue that using expired drugs introduces an unpredictable and avoidable risk, undermining the state’s obligation to carry out executions humanely.

What Evidence Supports the Use of Expired Drugs?

Despite these concerns, Alabama officials maintain that the expired drugs are still effective and safe for use. The state has cited internal testing conducted by its Department of Corrections, claiming that the sodium thiopental, manufactured in 2016 and set to expire in 2019, remains chemically stable. According to Alabama Attorney General Steve Marshall, the state has a “constitutional duty” to carry out court-ordered executions and has exhausted all legal avenues to obtain compliant drugs. Some pharmacologists note that expiration dates are conservative estimates and that many drugs retain efficacy years beyond their labeled date, especially when stored properly. However, the FDA has long warned that there is no guarantee of safety or potency after expiration, particularly for sterile injectables. Reuters investigations have previously revealed that states have turned to unregulated compounding pharmacies and questionable supply chains, raising further concerns about oversight.

What Do Medical and Ethical Experts Say?

Many medical and human rights organizations reject the use of expired or untested drugs in executions. The American Medical Association prohibits physician involvement in executions, citing a conflict with the Hippocratic Oath. Similarly, the World Medical Association has condemned the participation of doctors in capital punishment globally. Experts argue that the lack of peer-reviewed data on expired pharmaceuticals in this context makes their use a form of human experimentation. Dr. Joel Zivot, an anesthesiologist and critic of lethal injection protocols, has stated that “using expired drugs in execution is not just reckless—it’s a departure from science and ethics.” Skeptics also point to past botched executions, such as the 2014 execution of Dennis McGuire in Ohio, where the use of an untested drug combination led to a prolonged, gasping death that lasted nearly 25 minutes. These incidents fuel concerns that expired drugs could lead to similar suffering.

What Are the Real-World Consequences?

The use of expired drugs in executions has broader implications beyond one case. It reflects a systemic crisis in the application of the death penalty, as states increasingly resort to improvisation amid drug shortages. Alabama, Oklahoma, and Mississippi have all faced scrutiny for secretive execution protocols and attempts to use untested drug combinations. In Smith’s case, this isn’t his first scheduled execution—a 2018 attempt was called off after prison staff failed to establish an IV line after hours of effort, leading to a rare public reprieve. His 2024 execution would mark the first use of nitrogen hypoxia in U.S. history if carried out under that method, but the state has reverted to lethal injection. The erosion of procedural standards risks undermining public trust in the justice system and may prompt further legal challenges in other states.

What This Means For You

This case is not just about one inmate or one state—it speaks to how society confronts questions of justice, dignity, and state power. As governments use increasingly unorthodox methods to carry out capital punishment, citizens are left to weigh the cost of maintaining a death penalty system that operates in secrecy and under legal strain. The use of expired drugs forces a reckoning with whether executions can ever be conducted humanely or if the system is inherently flawed. For those who support the death penalty in principle, this raises uncomfortable questions about accountability and transparency.

Will courts intervene to set clearer standards for execution protocols, or will states continue to push boundaries in carrying out capital punishment? As legal battles unfold and public scrutiny grows, the fate of Kenneth Smith may become a pivotal moment in the ongoing debate over the future of the death penalty in America.

Source: Al Jazeera