“From this day forward I no longer shall tinker with the machinery of death.”
—Supreme Court Justice Harry Blackmun, Callins v. Collins, 501 U.S. 1141 (1994)
The only American producer of sodium thiopental has abandoned the market for that drug due to protests and export bans by European countries. The use of sodium thiopental in lethal injections in the United States was the cause of the protests, and shortages of the drug have some states scrambling for alternatives to keep their death penalty machinery up and running.
Sodium thiopental, sold under the brand name Pentothal, is a fast-acting barbiturate used to render people unconscious. For the 34 states that utilize lethal injection, it was commonly the first of a three-drug protocol administered during executions. When Hospira, Inc. of Lake Forest, Illinois discontinued making Pentothal in the U.S. due to manufacturing problems, shortages began. The company’s January 2011 decision to stop marketing the drug entirely gained the attention of advocates on both sides of the death penalty debate.
Proponents of capital punishment were upset due to delays in executions caused by the shortage of Pentothal. “I think it’s going to anger a lot of people,” said Michael Rushford, president and chief executive of the Criminal Justice Legal Foundation, a pro-death penalty group. “It would certainly bother someone whose daughter was killed by a convicted sex offender,” he observed.
Death penalty opponents, however, applauded Hospira’s decision. “I am pleased that a drug company has recognized the political ramifications of the sale of its product, even if that realization was extremely forced by another country’s laws and politics,” said Deborah W. Denno, a professor at Fordham University School of Law.
States that use lethal injection as a means of execution administer the three-drug regimen for what is known in the medical industry as “off-label” purposes. Once the sodium thiopental renders a condemned prisoner unconscious, pancuronium bromide, a paralytic that stops the prisoner from moving, is administered. An injection of potassium chloride is then given to stop the heart, resulting in death. The use of these drugs in executions has been highly controversial.
Medical professionals oppose both the death penalty and the unavailability of Pentothal, which also has legitimate uses. “Sodium thiopental is an important and medically necessary anesthetic agent that has been used for years to induce anesthesia in patients undergoing surgical procedures,” according to a statement from the American Society of Anesthesiologists (ASA). “Although its use has decreased in recent years due to the introduction of newer medications, such as propofol, sodium thiopental is still considered a first-line anesthetic in many cases, including those involving geriatric, neurologic, cardiovascular, and obstetric patients for whom side effects of other medications could lead to serious complications.”
The ASA further wrote that it “certainly does not condone the use of sodium thiopental for capital punishment, but we also do not condone using the issue as the basis to place undue burdens on the distribution of this critical drug to the United States.” The organization noted that “It is an unfortunate irony that many more lives will be lost or put in jeopardy as a result of not having the drug available for its legitimate medical use.”
Changing Methods, Changing Tactics
The death penalty has been a staple of American social control from the country’s inception. Hangings in town squares once drew huge crowds; the last public hanging was conducted in Owensboro, Kentucky in 1936, witnessed by an estimated 20,000 people in what was decried as a “carnival” atmosphere. Executions by firing squad were conducted in more secluded ways. The advent of gas chambers and the electric chair pushed the justice system’s death machinery from the public view entirely.
To administer the latter methods of execution, public officials created death chambers behind the walls of often-rural prisons. In this way, the killing of a prisoner was removed from the public’s eye. The public would merely be told the death sentence had been carried out; they would not see a prisoner’s contorted features or efforts not to breathe to avoid the horrors of choking to death in the gas chamber, nor the convulsions, burns and other suffering caused by electrocution while strapped into “Old Sparky,” as electric chairs were commonly known.
The “ghastly post-execution scene” that followed the July 8, 1999 electrocution of Florida prisoner Allen Lee “Tiny” Davis exhibited the barbarity of that means of execution. According to Dr. Robert Kirschner, “Davis’ death was caused by electrocution and association of partial asphyxiation which occurred before electrocution.” Davis bled profusely from his nose, and an autopsy reported burns on his head and leg. Nevertheless, Florida’s Supreme Court found that the use of the electric chair was constitutional. See: Provenzano v. Moore, 744 So.2d 433 (Fla. 1999).
Public opinion, and even the opinions of some judges, changed as a result of botched executions. “The fiery deaths of Jesse Tafero and Pedro Medina and the recent bloody execution of Allen Lee Davis are acts more befitting a violent murderer than of a civilized state,” wrote Florida Supreme Court Justice Leander Shaw in dissent. “Execution by electrocution – with its attendant smoke and flames and blood and screams – is a spectacle whose time has passed.”
In Medina’s case, foot-high flames erupted from his head during his electrocution, filling the death chamber with smoke. Tafero also suffered flames around his head when he was executed; it took three jolts of electricity to kill him.
While death penalty states have prevailed in court regarding the constitutionality of how prisoners are put to death, they also recognized the need to quiet the outcry caused by botched executions. In an effort to make death sentences conform to contemporary standards of decency, states began to adopt laws and procedures allowing them to administer drugs to kill prisoners, similar to the method commonly used when euthanizing animals.
Death penalty opponents then began to attack that method of execution. They have argued, for example, that lethal injection may render a prisoner paralyzed but still conscious, masking the pain caused by the drugs. Experts have testified that lethal injection drugs cause an intense burning sensation as they flow through the veins. [See: PLN, Jan. 2006, p.28].
Despite efforts to make the death penalty more “humane,” and thus more palatable to the public, numerous lethal injection executions have been botched. One issue in lethal injections is finding veins that can accept the needles used to administer the drugs; this is especially a problem in former junkies whose veins have collapsed due to prolonged intravenous drug use. And even when the condemned prisoner has good veins, mistakes can occur. For example, the December 13, 2006 execution of Florida prisoner Angel Diaz took 34 minutes when the needle used to inject the lethal drugs went straight through his vein. After the first injection attempt, Diaz continued to move and grimaced as he tried to speak; it took a second injection to kill him.
Death penalty researcher Michael L. Radelet, with the University of Colorado, has compiled a list of 31 botched lethal injections as of October 2010.
Despite bungled executions and expert testimony on the potentially painful effects of lethal injection, the U.S. Supreme Court rejected an argument that the three-drug protocol used by 34 states was cruel and unusual punishment, on the grounds that it had not been proven the anesthetics utilized during lethal injections result in excruciating pain. See: Baze v Rees, 128 S.Ct. 1520 (2008) [PLN, Dec. 2008, p.37].
More recently, on February 9, 2011, the Ninth Circuit Court of Appeals rejected a challenge by seven death row prisoners to Arizona’s three-drug lethal injection regimen, citing Baze. The appellate court found that Arizona had sufficient safeguards in its execution protocol to ensure that condemned prisoners would not experience improper anesthetization and thus potential suffering. See: Dickens v. Brewer, 631 F.3d 1139 (9th Cir. 2011).
Opponents of capital punishment realize they will not win the fight against the death penalty in the courts. “As long as the death penalty is constitutional, the courts will eventually approve some alternative,” noted Richard Dieter, executive director of the Death Penalty Information Center.
Death penalty supporters recognize that Hospira’s decision to exit the market for sodium thiopental is a change in tactics by those who oppose capital punishment. “The anti-death penalty advocates are focusing on the drugs as a way to prevent execution,” said Rushford, with the Criminal Justice Legal Foundation. “I guess if we were using a firing squad, they would go after Remington Company for their bullets. It’s an interesting tactic.”
Although polls indicate that most Americans support capital punishment, that support has been eroding over the past decade. Countries within the European Union have renounced the death penalty; many have laws against knowingly facilitating executions elsewhere.
Italy does not permit capital punishment, and for several years Italian politicians and activists have protested Texas’ use of the death penalty as barbaric. Those protests led to Hospira’s decision to discontinue making Pentothal.
Quality control issues at the company’s North Carolina plant led Hospira to stop producing sodium thiopental in the United States in August 2009. The only option for Hospira to continue making the drug was to move its manufacturing to a “state of the art production line” plant in the Italian town of Liscate, just outside of Milan.
In December 2010, the Italian parliament passed a measure requiring Hospira to ensure that all sales of Pentothal would only go to medical providers and none would go to prisons for use in executions. The company found it could not make such a guarantee, and halted production of sodium thiopental the following month.
“Conversations with wholesalers – the primary distributors of this product to customers – led us to believe we could not prevent the drug from being diverted to departments of corrections for use in capital punishment,” Hospira said in a statement. “Based on this understanding, we cannot take the risk that we will be held liable by the Italian authorities if the product is diverted. Exposing our employees or facilities to liability is not a risk we are prepared to take.”
Hospira also said it had “never condoned” the use of Pentothal for executions. As the drug generates less than one-quarter of one percent of the company’s nearly $4 billion in annual sales, exiting the market for the anesthetic will not result in much of a financial loss. Still, Hospira expressed reservations.
“We regret that issues outside of our control forced Hospira’s decision to exit the market and that our many hospital customers who use the drug for its well-established medical benefits will not be able to obtain the product from Hospira,” the company stated.
To some, the unavailability of Pentothal is an indication that the death penalty in the U.S. is losing steam. “It’s more evidence the house of cards is crumbling on this system,” remarked Diann Rust-Tierney, executive director of the National Coalition to Abolish the Death Penalty.
“This is a very big deal because so many states use the drug [in their executions]. I don’t know what’s going to happen, but states were hoping for Hospira to get back in this business,” said Richard Dieter. “This is clearly going to cause a problem for a lot of states.”
Indeed, the New York Times reported last year that several states were forced to postpone executions due to a scarcity of sodium thiopental, including California, Kentucky and Oklahoma.
The Mad Drug Scramble
The unavailability of Pentothal in the U.S. resulted in death penalty states scrambling to find new sources for the drug to continue operating their death chambers.
Documents obtained in a public records suit filed by the American Civil Liberties Union (ACLU) of Northern California indicated that the shortage of sodium thiopental caused problems for California prison officials intent on carrying out executions. Over 1,200 pages of e-mails, correspondence and other records revealed the officials searched everywhere for the drug when it began to be in short supply. See: ACLU of Northern California v. California Department of Corrections and Rehabilitation, San Francisco County Superior Court (CA), Case No. CPF-10-510882.
“We have contacted 80-90 hospitals over the past few days and none of them have a drop of Pentothal,” said a redacted e-mail dated September 16, 2010. On the day before California was scheduled to execute Albert Greenwood Brown, a contractor for the California Department of Corrections and Rehabilitation (CDCR) wrote to undersecretary Scott Kernan, stating, “I called approximately 100 hospitals and local general surgery centers.” State officials had tried to expedite Brown’s execution last September, as their stock of sodium thiopental was due to expire on October 1, 2010.
The CDCR, in what it termed a “secret and important mission” that was “very political and media sensitive,” then attempted to obtain the drug from Arizona officials. Arizona agreed to provide 12 grams of sodium thiopental. In a transaction that looked similar to a street-level drug deal, an Arizona warden handed 24 vials of sodium thiopental to a CDCR official, who drove to southern California and delivered the drugs to San Quentin, which houses the state’s death chamber. “You guys in AZ are life savers. Buy you a beer next time I get that way,” said Kernan, apparently without irony.
However, due to a pending federal lawsuit and the CDCR’s last-minute efforts to obtain the lethal injection drugs, Brown’s execution date was postponed. Drug shortages will not be a problem for the next 85 executions in California, though, due to the state’s subsequent purchase of 521 grams – over a pound – of sodium thiopental from London, England-based Dream Pharma Ltd., which has sold drugs to at least three U.S. prison systems.
The owner of Dream Pharma, Mehdi Alavi, said he had “no idea” why prison officials had purchased lethal injection drugs from his company, though it was later revealed he was aware they would be used in executions.
According to Dream Pharma’s website, the company’s products include “discontinued” drugs and “discount pharmaceuticals.” Drugs sold by Dream Pharma to Arizona in September 2010 were used to execute a prisoner the following month, a fact not revealed until after the execution had occurred. California officials reportedly paid over $36,000 for their lethal injection drugs, at a significant mark-up by Dream Pharma.
The U.S. Food and Drug Administration (FDA) has long maintained that it has nothing to do with drugs used in executions. Yet when Arizona and California quietly asked for assistance in importing a shipment of sodium thiopental from outside the United States, an FDA official recommended that the shipment “be processed expeditiously ... as it was for the purpose of executions and not for use by the general public.”
The ACLU accused the FDA of waffling not only on its position but also on its legal duty. “The FDA is actively assisting these [death penalty] states, but they’re not enforcing the law, and they’re not doing anything to determine that the drugs are what they’re claimed to be and that they work properly,” said Natasha Minsker, death penalty policy director for the ACLU of Northern California.
The FDA rejected that accusation. “Reviewing substances imported or used for the purpose of state authorized lethal injection clearly falls outside of the FDA’s explicit public health role,” retorted agency spokesman Christopher Kelly.
To maintain their current capital punishment protocols, states will need to find more distributors for sodium thiopental. China and Pakistan reportedly manufacture the drug without restrictions, though there have been no reports that states are obtaining lethal injection drugs from those countries.
The same, however, cannot be said about India. In December 2010, the Nebraska Department of Correctional Services (NDCS) purchased 500 grams of sodium thiopental from Kayem Pharmaceutical Pvt. Ltd, based in Mumbai, India, for $2,056. NDCS spokeswoman Dawn-Renee Smith said that was the minimum amount the company would sell. South Dakota also purchased execution drugs from Kayem Pharmaceutical. The company bills itself as “a contract manufacturer and marketers of cheap generic prescription drugs,” according to its website.
While Asian countries are willing to sell execution drugs to U.S. prison systems, the entire European Union is considering following the lead of England, which banned the export of sodium thiopental last November and prohibited the export of other lethal injection drugs, including pentobarbital, pancuronium bromide and potassium chloride, in April 2011.
“We oppose the death penalty in all circumstances and are clear that British drugs should not be used to carry out lethal injections,” said Business Secretary and Member of Parliament Vince Cable. “That is why we introduced a control on sodium thiopental last year – the first of its kind in the world. And it is also why we are now controlling the export of the other drugs used in lethal injections in the U.S.”
Kayem Pharmaceutical, under pressure from death penalty opponents, released a statement on April 7, 2011 that said the company would no longer sell sodium thiopental for use in executions. According to the company, providing drugs for capital punishment goes against the “ethos of Hinduism.” The decision by Kayem further limits where states can turn to for supplies of sodium thiopental.
Some states have resorted to borrowing drugs from other death penalty states. Tennessee shared part of its lethal injection drug supply with Arkansas, Alabama and Georgia, but then had to seek another supplier for its own execution needs. Arkansas prison officials, in turn, have shared their stock of sodium thiopental with Mississippi, Oklahoma and Tennessee, in a kind of lethal injection drug “swap club.”
States Breaking the Law?
Ironically, in their zeal to enforce the law to execute condemned prisoners, some states may have broken the law by improperly importing lethal injection drugs from overseas – specifically, by violating the Controlled Substances Act (CSA). The CSA requires agencies to register to import certain drugs and file declarations related to such importations. The requirements of the CSA are enforced by the Drug Enforcement Administration (DEA). Yet some of the states that imported sodium thiopental for use in executions were not registered to receive that type of drug, and did not file import declarations.
Attorney John Bentivoglio, representing Georgia death row prisoner Andrew DeYoung, sent a letter to U.S. Attorney General Eric H. Holder, Jr. on February 24, 2011, which stated the Georgia DOC “appears to have violated the Controlled Substances Act (CSA) by failing to register as an importer of the controlled substance (thiopental) used by the [DOC] in lethal injections and failing to submit a declaration to the Drug Enforcement Administration....”
The letter noted that Georgia prison officials may lack authority to even possess sodium thiopental, and asked the Attorney General to “conduct a prompt and thorough investigation of these issues.” Georgia had received a shipment of sodium thiopental imported from Dream Pharma in July 2010.
“The [Georgia DOC] appears to have resorted to unlawful means to obtain thiopental, raising serious questions about the legality and integrity of the lethal injection procedure in Georgia,” said Bentivoglio.
Attorneys in Arizona and Kentucky also contacted the U.S. Dept. of Justice, requesting an investigation into how those states obtained the drugs they used in executions.
On March 16, 2011, in an unprecedented move, DEA agents seized Georgia’s entire supply of sodium thiopental, citing questions about the legality of the drug’s importation into the United States.
“There’s something terribly wrong when officials charged with enforcing criminal laws break them,” observed Brian Mendelsohn, an attorney who represents death row prisoners.
Kentucky prison officials voluntarily surrendered their stock of sodium thiopental to the DEA, according to an April 1, 2011 article by the Associated Press, which said the drug was “to be used as evidence in a case in another jurisdiction.” Kentucky had reportedly obtained its lethal injection drugs from a Georgia company, CorrectHealth.
Tennessee also relinquished its supply of sodium thiopental to DEA agents; state officials said they did “not purchase any drugs from a foreign supplier,” and denied any wrongdoing. Upon request, Alabama gave its execution drugs to the DEA, too, which it had obtained from Tennessee.
Additionally, Nebraska attorney Alan Peterson, who represents death row prisoner Carey Dean Moore, has asked the U.S. Attorney General’s office to investigate Nebraska’s importation of sodium thiopental from Kayem Pharmaceutical. According to Peterson, “there is strong evidence indicating that Nebraska illegally imported [the drug] from India, with no attention to the requirements of the Controlled Substances Act.”
Lawsuits Target Imported Drugs
A variety of legal actions have been filed over the importation of sodium thiopental by death penalty states from overseas suppliers and the effectiveness of those imported drugs.
A federal lawsuit filed by Arizona death row prisoner Daniel Wayne Cook challenged the use of non-FDA approved drugs obtained from outside the U.S. The Federal Public Defenders Office, representing Cook, argued that such drugs are substandard and could lead to problems during lethal injections, such as conscious suffering by the prisoner being executed. The district court dismissed the lawsuit in January 2011 and Cook has since appealed to the Ninth Circuit. See: Cook v. Brewer, U.S.D.C. (D. Ariz.), Case No. 2:10-cv-02454-RCB.
Cook filed another suit in March 2011, arguing that according to records from the U.S. Customs and Border Protection agency, the lethal injection drugs imported by Arizona prison officials from Dream Pharma, including sodium thiopental and pancuronium bromide, were intended for use in animals, not humans. Indeed, the imported drugs were described on FDA forms as being for “animal (food processing).” Arizona Attorney General Tom Horne said that was a mistake which resulted from a coding error by a broker.
Cook’s lawsuit further alleged that during previous executions carried out in Arizona and Georgia using drugs obtained from Dream Pharma, the prisoners’ “eyes remained open throughout the execution.” However, “[u]pon information and belief, no execution using domestically produced sodium thiopental has resulted in a prisoner’s eyes remaining open during the execution,” thus calling into question the effectiveness of the imported drugs.
Cook’s second suit was summarily dismissed by the district court four days after it was filed, and the dismissal is presently on appeal to the Ninth Circuit. See: Cook v. Brewer, U.S.D.C. (D. Ariz.), Case No. 2:11-cv-00557-RCB.
Existing supplies of lethal injection drugs held by death penalty states have expiration dates. Virginia, for example, facing a looming execution, had a stock of expired drugs. The state requested FDA approval to use them anyway. “They ran into a brick wall when they tried this with the FDA,” California prison officials noted in an e-mail. When Virginia executed 41-year-old Teresa Lewis six weeks later, it was unknown where the state obtained the drugs used in her execution.
Missouri’s dwindling lethal injection drug supply expires in 2011. Texas, the nation’s leading capital punishment state, has enough drugs for 39 executions, though its supply is getting old, too.
“At this time [mid-January 2011], we have enough sodium thiopental on hand to carry out the two executions scheduled in February. In March, our supply of this particular drug is set to expire,” said Michele Lyons, director of public information for the Texas Department of Criminal Justice (TDCJ). The TDCJ had been buying its lethal injection drugs from Ohio-based Besse Medical, which is owned by Pennsylvania-based AmerisourceBergen Corp.
How the TDCJ will execute prisoners once its current drug supply expires is a matter of concern to state officials. “Really, at this point, we’ll be exploring all options,” said Lyons. “We will have to find another supplier or adopt another drug to use.”
Ironically, the mad scramble by prison officials to secure lethal injection drugs needed to execute prisoners – many of whom were drug users – mimics the desperate acts of addicts looking for another fix.
In February 2011, a lawsuit filed in the District of Columbia by the Federal Public Defenders Office, on behalf of six death row prisoners in Arizona, California and Tennessee, sought a court order directing the FDA to ban imports of sodium thiopental for use in lethal injections and to recall any such drugs already imported for that purpose. Arizona Attorney General Tom Horne said the suit was “a frivolous use of tax dollars.”
“The law requires FDA to ensure that only safe, effective drugs are brought into the United States,” replied attorney Bradford A. Berenson, who represents the prisoners in the lawsuit. “When the agency allowed states to import unapproved sodium thiopental, it abdicated its responsibilities and violated federal law.” The case remains pending; one of the plaintiffs, Arizona prisoner Eric King, was executed on March 29. See: Beaty v. FDA, U.S.D.C. (D. D.C.), Case No. 1:11-cv-00289-RJL.
A separate lawsuit filed by Georgia death row prisoner Roy Willard Blankenship argued that he should not be executed using lethal injection drugs that might be beyond their expiration date, because they may not be as effective – resulting in needless pain and suffering. Although state officials claimed the execution drugs would not expire until 2014, Blankenship’s attorneys cited contradictory evidence.
The sodium thiopental obtained by Georgia from Dream Pharma was reportedly in containers labeled “Link Pharmaceuticals” – a company bought out in 2007 by Archimedes Pharma Limited, which supplied the drug to Dream Pharma. Since no drugs have been produced under the Link Pharmaceuticals name since July 2007, the state’s sodium thiopental may be nearing the end of its four-year effective lifespan.
“There is an extremely high risk that the use of expired sodium thiopental would cause the individual being executed to experience excruciating pain due to inadequate sedation,” said University of Georgia pharmacy professor Randall Tackett.
Regardless, Blankenship’s lawsuit was dismissed by the district court on February 15, 2011; it is currently on appeal. He is represented by the Southern Center for Human Rights. See: Blankenship v. Owens, U.S.D.C. (N.D. Georgia), Case No. 1:11-cv-00429-TCB.
In addition, the ACLU of Northern California and the San Francisco Bay Guardian, a weekly paper, filed suit against the DEA on April 22, 2011, seeking the release of records related to efforts by state officials to procure lethal injection drugs from overseas suppliers. The lawsuit was filed after the DEA failed to produce the records for four months following a Freedom of Information Act request. A motion for a preliminary injunction to require the DEA to release the records is pending. See: ACLU of Northern California v. Drug Enforcement Administration, U.S.D.C. (N.D. Cal.), Case No. 3:11-cv-01997-RS.
Keeping the Machinery of Death Running
Over the past decade there has been an average of 55 executions annually in the United States. Forty-six prisoners were executed by a dozen states in 2010, compared with 52 executions in 11 states in 2009 – virtually all by lethal injection.
The shortage of Pentothal and expiring supplies of existing lethal injection drugs have already had an effect on capital punishment. “We’ve already seen delays in executions and setting dates for executions when Hospira stopped production,” said Dieter, with the Death Penalty Information Center. “There are manufacturers outside of the U.S., but the U.K., for instance, has taken steps to prevent exportation of the drug for use in executions. And some producers may raise questions of reliability of expiration dates.”
With few new supplies of sodium thiopental available, the use of expired drugs concerns death penalty opponents. A lawsuit filed by the Southern Center for Human Rights (SCHR) in Superior Court in Fulton County, Georgia sought to halt the execution of Emmanuel Hammond; it also requested documents related to the drugs used by Georgia prison officials in executions. See: Hammond v. Owens, Superior Court of Fulton County (GA), Case No. 2011CV195436.
“The state has hid from public view critical records about whether the lethal injection process is medically and constitutionally acceptable,” said SCHR attorney Gerald Weber. “If the state does not have the necessary chemicals, or is using expired ones, it cannot hide these facts from Georgians.”
The court found that Georgia prison officials had violated the Open Records Act and ordered the state to produce records related to the state’s lethal injection drugs. However, despite the questionable origin of those drugs, which were procured from Dream Pharma, the court allowed Hammond’s execution to proceed, finding there was no evidence that the state’s lethal injection drugs were “adulterated or inferior.” Hammond was executed on January 25, 2011.
Other states that do not have sufficient supplies of Pentothal, or the ability to get more, are turning to alternative drugs. Making that change may be easier for some states than others, as a number of states will have to change their statutes and administrative procedures, which require public hearings.
California’s executions were halted in December 2006 by a federal court over concerns that the state’s lethal injection procedures, including insufficient training of its execution team, amounted to cruel and unusual punishment. See: Morales v. Tilton, 465 F.Supp.2d 972 (N.D.Cal. 2006). The federal case remains pending and in February 2011, U.S. District Court Judge Jeremy Fogel toured California’s new $900,000 death chamber at San Quentin State Prison. [See, e.g.: PLN, Jan. 2009, p.34].
In an unrelated case, in 2008 a California Court of Appeal held the state’s lethal injection protocol was invalid because it failed to comply with the Administrative Procedures Act. [See: PLN, Nov. 2009, p.28]. The state belatedly made efforts to comport with the Act.
The Maryland legislature held a hearing in March 2011 to decide whether the state should repeal the death penalty or revise its procedures for carrying out executions. Although Governor Martin O’Malley favors abolishing capital punishment, there is little apparent enthusiasm among state lawmakers to do away with the death penalty. Maryland has had a de facto moratorium on executions since December 2006, following a Court of Appeals ruling that found the state’s lethal injection procedures had not been properly implemented. See: Evans v. State, 396 Md. 256, 914 A.2d 25 (Md. 2006), cert. denied.
Meanwhile, as of May 2011, at least ten states had moved forward by replacing sodium thiopental in their execution protocols with pentobarbital (trade name Nembutal), a barbiturate often used to euthanize animals. Those states include Oklahoma, Ohio, Texas, South Carolina, Washington, Mississippi, Alabama, Louisiana, Florida and Virginia.
The change was approved in Oklahoma after a federal judge found that pentobarbital fell “short of the level of risk considered to be cruel and unusual punishment.” Oklahoma has already executed three prisoners using the substitute drug, beginning in December 2010 when John David Duty was put to death. Duty’s attorneys had unsuccessfully challenged the state’s use of pentobarbital. The Tenth Circuit held that death row prisoners failed to prove “that the use of pentobarbital in Oklahoma’s lethal injection protocol presents a constitutionally unacceptable risk of harm to the inmate.” See: Pavatt v. Jones, 627 F.3d 1336 (10th Cir. 2010).
Ohio executed prisoner Johnnie Baston, 37, on March 10, 2011 using pentobarbital. That execution, however, differed from Oklahoma’s use of the substitute drug because Ohio was the first state to use a single drug to execute a prisoner. The state had previously switched to a two-drug method after a court found Ohio’s three-drug protocol violated prisoners’ rights under state law. [See: PLN, Jan. 2009, p.32]. Ohio went to a single drug following a botched lethal injection in September 2009. Baston’s execution was performed solely with pentobarbital.
Washington adopted Ohio’s one-drug lethal injection method in March 2010, South Carolina conducted its first execution using pentobarbital on May 6, 2011, and Virginia decided to replace sodium thiopental with pentobarbital on May 9, 2011.
“The Virginia protocol for lethal injection has been litigated and has been found to be constitutionally acceptable by every court in Virginia that has looked at it ... and we are confident that the change to allow the drug pentobarbital to be substituted for sodium thiopental in the protocol will be found to be constitutionally acceptable as well,” said Brian Gottstein, a spokesman for the state Attorney General’s office.
Texas officials face a lawsuit filed by death row prisoners Cleve Foster and Humberto Leal over the state’s March 16, 2011 decision to switch from sodium thiopental to pentobarbital for lethal injections. The TDCJ has purchased $25,000 worth of pentobarbital, enough for almost 40 executions. The suit claims the state failed to comply with the Administrative Procedures Act when changing its execution protocol.
Documents obtained from the TDCJ indicate that Rick Thaler, director of the TDCJ’s Correctional Institutions Division, did not consult with doctors or other medical professionals before deciding to change the state’s lethal injection drug protocol. The attorneys who filed the APA suit also alleged that the TDCJ had ordered its execution drugs using a DEA registration number assigned to the TDCJ’s Huntsville Unit hospital. That hospital unit, however, has been closed for more than 25 years.
“This is not about whether death row inmates get to decide what drugs they are executed by,” said Bryce Benjet, one of the attorneys representing Foster and Leal. “We need these things to be fully vetted.”
The APA suit was dismissed by the district court on April 28, and is now on appeal to the Texas Court of Appeals. See: Foster v. TDCJ, Travis County District Court (TX), Case No. D-1-GN-11-000917.
On April 4, 2011, the ACLU, ACLU of Texas and the Center for International Human Rights at Northwestern University Law School released a report about the risks associated with Texas’ switch to pentobarbital for lethal injections. The report noted that state officials require strict standards for euthanizing animals, but have few requirements in terms of staff training and the effectiveness of lethal injection drugs when executing prisoners.
“[T]he manner in which Texas carries out the execution of human beings is riskier, less transparent, and has less oversight than the euthanasia of cats, dogs, birds, and lizards,” the report concluded.
“We are calling on the Texas Board of Pardons and Paroles, Governor Rick Perry and the courts to stay pending executions until the legislature enacts measures that provide at least the same protections to human beings condemned to die as are provided to sick or unwanted animals,” said John Holdridge, who directs the ACLU’s Capital Punishment Project.
Other states that use lethal injection are expected to change their protocols due to the shortage and lack of availability of Pentothal. “Long term, I expect the states will follow the lead of Oklahoma and switch to another drug without a supply problem,” remarked Kent S. Scheidegger, legal director of the Criminal Justice Legal Foundation. “Short term, this requires going through the cumbersome regulation process with comment-spamming by the anti-death penalty crowd,” he added.
Legal challenges are certain to persist. Georgia death row prisoner Andrew DeYoung filed suit in May 2011, contending that the Department of Corrections must follow the state’s Administrative Procedures Act (APA) if it changes its lethal injection protocol to include pentobarbital. In order to alter the state’s execution procedures the public must be allowed to comment and a hearing must be held, he argued.
The Georgia DOC “evidently has no intention of following the [APA] procedures that are required even when agencies promulgate rules governing, for instance, dog catchers, cosmetologists and pest exterminators,” DeYoung’s lawsuit states. “Rather, [the DOC] has ignored the requirements of the [APA] in its efforts to rapidly implement a new lethal-injection procedure, even during a federal investigation.” The “federal investigation” refers to the recent seizure of Georgia’s imported execution drugs by the DEA.
Death Penalty Debate Continues
There are no current shortages of pentobarbital in the United States, according to the FDA. But that could change because only one company markets the drug: Lundbeck, Inc., which is headquartered in Denmark.
Lundbeck has objected to the use of its drug in executions. “It’s against everything we stand for. We invent and develop medicine with the aim of alleviating people’s burden. This is the direct opposite of that,” the company said in a statement. However, Lundbeck continues to provide pentobarbital to the U.S. market, saying it has no control over the supply chain once it sells pharmaceuticals to wholesalers.
This has not satisfied some of the company’s investors. In May 2011, a Danish pension fund, Unipension, announced that it had sold $7.6 million worth of Lundbeck’s stock, saying the company’s response to the controversial use of pentobarbital was “inappropriate.”
Should death penalty states continue to experience problems with obtaining sufficient supplies of lethal injection drugs, the end result may be nothing more than a delay in executions – or it could prompt a return to more traditional methods of capital punishment. After all, there is no shortage of rope for hangings, or bullets for firing squads.
“It will affect different states differently,” said Richard Dieter. “I don’t think anybody’s going back to hangings. They’re going to have to recalculate things.”
It seems that the death penalty in the United States will be abolished only when members of the public – and the lawmakers who represent them – accept that killing people who kill is an uncivilized and unacceptable punishment, as the European Union, Australia, Canada, Mexico and many other nations have already concluded. Until that time, the scramble for drugs used to execute prisoners and the struggle to end the death penalty will both continue apace.
Sources: Associated Press, www.newswire.com, Austin American-Statesman, Atlanta Journal-Constitution, Journal Star, New York Times, Washington Post, Richmond Times-Dispatch, Texas Tribune, Houston Chronicle, Chicago Tribune, Bloomberg, Los Angeles Times, Sacramento Bee, Miami Herald, Columbus Dispatch, Guardian, BBC News, AFP, USA Today, www.aclunc.org, www.theonlines.co.uk, http://fairandunbalancedblog.blogspot.com, www.deathpenaltyinfo.org, www.azcentral.com, www.timesunion.com, www.correctionsone.com, Virginian-Pilot, Reuters, http://www.aclu.org/capital-punishment, http://deathpenaltynews.blogspot.com, The Nation, www.dreampharma.com, www.archimedespharma.com, www.kayempharma.com, www.foxnews.com
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