The New York Times
April 13, 2011
Seeking Execution Drug, States Cut Legal Corners
By John Schwartz
A shortage of one of the three drugs used in most lethal injections has caused disarray as states pursue a desperate and sometimes furtive search that might run afoul of federal drug laws.
At the same time, it has given death-penalty opponents fresh arguments for suing to block executions.
Until recently, states that use the drug, the barbiturate sodium thiopental, got it from a domestic supplier, Hospira Inc. But that company stopped making the drug in 2009 because of manufacturing problems and announced this year that it would stop selling the drug altogether. International pressure on suppliers by groups opposed to the death penalty has further restricted access to the drug. States had to find a new source, but importation of sodium thiopental is highly restricted under federal law.
Recently released documents emerging from lawsuits in many states reveal the intense communication among prison systems to help one another obtain sodium thiopental, and what amounts to a legally questionable swap club among prisons to ensure that each has the drug when it is needed for an execution.
In depositions from Arkansas officials, Wendy Kelley, a deputy director of the Department of Correction, said she obtained sodium thiopental from a company in England after hearing about it from corrections officers in Georgia. Her state, she said, at various times had given the drug to Mississippi, Oklahoma and Tennessee free of charge, and obtained the drug from Texas — she traveled to Huntsville herself — and from Tennessee.
“I went wherever they had them,” Ms. Kelley said. “As best as I’m aware, the agreement my director had with other directors, any time there was an exchange, was that there would be a payback when needed.”
When Kentucky went searching for execution drugs this year, the state’s corrections commissioner, LaDonna H. Thompson, wrote in a memo that she had contacted departments in Georgia, Nebraska, South Dakota and Tennessee. A Georgia official “referred me to a distributor in Georgia that he thought might have a supply,” she wrote, adding that she had gotten information on “an organization in India,” Kayem Pharmaceuticals. (That company halted shipments to the United States last week under international pressure.)
Bradford A. Berenson, a Washington lawyer who on behalf of death row inmates has urged the Food and Drug Administration and the attorney general, Eric H. Holder Jr., to block the importation of unapproved execution drugs into the United States, said the states had been “pretty heedless of the legal lines” regarding the purchase and importation of powerful drugs like sodium thiopental. It was as if “because this was death-penalty related, it was somehow exempt from all the normal rules,” Mr. Berenson said. “As a legal matter that was not true.”
States sometimes took remarkable measures to obtain the drugs, the documents suggest.
Georgia prison officials were clearly growing anxious last summer as their supply of sodium thiopental neared expiration and a shipment from England lay stalled for weeks in Memphis. Customs agents had detained the package pending inspection by the Food and Drug Administration. By July 6, a corrections official sent a terse e-mail to a colleague asking, “Any word?”
The response: “We got word but not the ‘good’ word.” The shipment was still held up. “I continue to track the package several times each day.”
So officials explored a new tactic, the documents show: instead of going through the usual channels of ordering the drug through a Georgia health care company and a local pharmacy, might the British company simply send the drug directly to the department?
The owner of Dream Pharma, a wholesaler run out of the back room of a driving academy’s offices in London, replied, “I am more than happy to assist.” Matt Alavi, the owner, also warned that a certain carrier was “very stringent with U.S. customs.” A Georgia corrections official approved the deal — “Yes. Make it happen” — with instructions to seek a supply with long expiration dates, and the drugs were soon on their way to the United States.
This approach may well have broken federal drug laws, said John T. Bentivoglio, a former associate deputy attorney general, in a February letter to Mr. Holder on behalf of a Georgia death row prisoner, Andrew Grant DeYoung. The Drug Enforcement Administration seized Georgia’s drugs last month, and this month Kentucky and Tennessee turned over theirs as well.
“I think it’s quite reasonable to expect a state criminal justice agency like a department of corrections to abide by federal law,” Mr. Bentivoglio said in an interview.
Other documents show close cooperation among the states. A California road trip that transported sodium thiopental from Arizona to San Quentin emerged in nearly 1,000 pages of documents released by the A.C.L.U. of Northern California late last year. They showed e-mails from Scott Kernan, under secretary for operations for California’s Department of Corrections and Rehabilitation, telling aides of a “secret and important mission,” and warning that it was “very political and media sensitive.”
Mr. Kernan sent a thank-you note to Charles Flanagan, the deputy director of Arizona’s Department of Corrections, that read, “You guys in AZ are life savers,” adding, “by you a beer next time I get that way.”
When Arizona ordered its own shipment in September, documents show, the state worked closely with Customs and Food and Drug Administration officials to prevent the kind of delays that plagued Georgia, and made sure that the port of entry was Phoenix, where its own broker could help. The shipments were labeled as being for veterinary use, which lawyers for the prisoners argue was intended to get the drugs lighter regulatory scrutiny.
“Based upon our review of documents released by federal agencies, it appears that there was a culture of premeditated deception,” said Dale Baich of the federal public defender’s office in Arizona. “Someone came up with a plan to bypass the process that would have stopped the drugs at the border.”
Kent E. Cattani, chief counsel for capital litigation in the Arizona attorney general’s office, called the accusation “absurd,” and cited correspondence going back as far as December with the Food and Drug Administration explicitly stating that the drugs were necessary “for carrying out an execution warrant.”
Representatives of the Food and Drug Administration, the Drug Enforcement Administration and the Department of Justice said agencies’ policies did not allow comment on pending litigation.
Until the drug shortage, the routine for lethal injections had been a fairly settled process. States allowed little change for fear of deviating too far from practices that have been declared constitutional. The three-drug protocol widely used for a quarter-century involves sodium thiopental or a similar sedative, pentobarbital, to render the prisoner unconscious. A second drug, pancuronium bromide, brings on paralysis and a third, potassium chloride, stops the heart.
Supporters of the death penalty criticize the recent challenges as yet another delaying tactic in a long history of try-anything challenges. Kent S. Scheidegger, the legal director of the Criminal Justice Legal Foundation in California, said the conflicts “seem to be accelerating the switch to pentobarbital,” which is more readily available, but also show vulnerabilities inherent in lethal injection. He recently called for a return to the gas chamber, using nontoxic gases that would displace oxygen in the chamber.
Douglas A. Berman of Ohio State University, an expert on sentencing and punishment, says the recent legal challenges concerning death penalty drugs are more than a mere inconvenience to the process. “This mess is a speed bump,” he said, “but one that does raise serious issues about the death penalty.” The bigger issue beyond what he called the “Keystone Kops” fumbling of state officials, Professor Berman said, is what the disruption to the process says about the temperamental nature of what death-penalty abolitionists call the “machinery of death.”