For dozens of condemned state prisoners, a life-and-death question still hangs unanswered despite months of legal decisions, public-records requests and a leaked key state document: Does the state have the drug necessary to carry out an execution by lethal injection?
In the most recent development, a copy of the state protocol for executing prisoners appeared on NOLA.com after the Louisiana Department of Public Safety and Corrections asked a federal judge to keep the procedures secret. Even though the judge denied the request, the state still refused to release the protocol, citing safety concerns — a rationale the judge dismissed.
The document requires the Louisiana State Penitentiary pharmacy:
Maintain the following stock ensuring chemicals have not exceeded expiration date: 15 grams pentobarbital 50mg/ml solution
When The Lens cited this portion of the state document and asked for the public records that would prove that the Corrections Department was complying, the state’s attorney responded with a curious interpretation.
“The section of the Protocol that you focus on appears to require that the Department keep 15 mg of Pentobarbital that is not expired,” Jacqueline Wilson wrote in an email to The Lens. “I do not read that provision to impose obligation upon the Department to maintain records.”
She said the department has previously complied with all public-records requests from The Lens looking to determine whether the state has the drug. The information provided, though, simply shows a purchase date in 2011, not an expiration date. Akorn, Inc., the manufacturer that currently supplies the drug says that it has a shelf life of two years; the manufacturer that supplied the drug when the department bought it, Lundbeck, pegs it at three years.
So how does the Department of Corrections know whether or not the drugs are expired? After all, the label on a bottle in the pharmacy is a public record.
Department spokeswoman Pam Laborde said she couldn’t comment because of ongoing federal lawsuits. She didn’t explain how the presence of the drug on the pharmacy shelf or lack thereof would affect the litigation.
Earlier this year, The Lens requested records from the state showing expiration dates of pentobarbital. None was made available.
That was the drug a department official said in February that the state planned to use for the execution that month of death row inmate and convicted child killer Christopher Sepulvado. His execution was later delayed.
By April, the department said it had no records showing the expiration.
Lundbeck, pentobarbital’s original manufacturer, said the drug would have come with a label showing an expiration, among other things.
When asked whether the state had pentobarbital with an attached label, Wilson declined to answer, citing litigation.
The most recent lawsuit against the state regarding the drug was filed in December by death-row inmate Jessie Hoffman, who in 1996 kidnapped, raped and murdered advertising executive Mary “Molly” Elliot. In February, convicted child killer Christopher Sepulvado joined Hoffman’s suit. Sepulvado was convicted of torturing and murdering his 6-year-old stepson in 1992.
Both assert that the principle of due process requires that they be fully informed how the state intends to execute them, and that Louisiana’s method of execution is unconstitutionally cruel and unusual.
The debate is fresh again nationwide because of a shortage of one drug in a three-drug combination that had been used for years to kill prisoners. Many states have gone to the single drug, pentobarbital, and some have faced similar lawsuits.
Alex Mikulich, an assistant professor at the Jesuit Social Research Institute of Loyola University, said the state’s lack of transparency is concerning. An outspoken advocate against the death penalty, he questioned why the state would dodge questions if officials didn’t have anything to hide – such as expired drugs.
“It is at best odd why there is a lack of transparency, given they say they have what they need,” he said.
Comparing Louisiana’s protocol to those of other states
The death penalty is legal in 32 states, according to the Death Penalty Information Center, and those states deal with the dissemination of information about their lethal injection process in a variety of ways.
Louisiana fought in court to keep its methods secret.
The two death-row inmates have been asking for the procedure as part of their joint lawsuit since February. In May, the department asked a federal magistrate judge that it be put under seal and released only to the two plaintiffs, their attorneys and experts involved in the case. Department officials said that the protocol could put the security of Louisiana’s prison system at risk if the document were released to anyone else.
It appeared on NOLA. com not long after. Upon seeing Louisiana’s protocol, Hoffman’s lawyer told NOLA.com that it was “woefully inadequate” because it lacks expiration dates, among other things.
Hoffman’s attorney, Michael Rubenstein, and other defense attorneys pointed out in a court filing in June that other states considered standard practice parts of the lethal injection process that Louisiana continues to keep secret.
For instance, Arizona had released the expiration dates of its lethal injection drugs – even though state officials also claimed in court that such information was too high-security to be shared with the public. A judge did not seal the information.
The expiration dates for Ohio’s supply of pentobarbital were also made public. Ohio’s lethal injection supply expires in September.
Previously, defense attorneys had complained that by not releasing Louisiana’s protocol, the public wouldn’t know how lethal drugs are overseen or administered. Among the questions Hoffman’s attorney posed:
- Whether any medical authorities were consulted regarding the incorporation of pentobarbital
- Details about the training of personnel who will implement the procedure for the first time
While the Louisiana protocol does not outline how it chose pentobarbital or its original source or expiration date, it does include instructions about personnel training.
Louisiana’s protocol requires that an execution team be trained at least once every six months before an execution is set, and weekly once an execution date has been set. The protocol mandates that the training be documented.
Also, in a protocol similar to that of Texas, Louisiana requires that the team leader and other member have at least one year of experience as phlebotomist, emergency medical technician, paramedic or military corpsman with training in phlebotomy.
Both Texas and Louisiana protocols call for back-up drugs to be made available.
Despite those instructions outlined in Louisiana’s protocol, Rubenstein told The Lens in July that he stands by his statement that the document is inadequate.
Like Louisiana, the Texas protocol calls for expiration dates of lethal injection drugs to be checked, but does not explicitly say what the expiration date of the most current drug is.
Other states are less transparent than Louisiana or Texas when it comes to lethal injection.
In March, an Arkansas trial court ruled that inmates sentenced to the death penalty may not use the state’s open records law to obtain information about the origin and history of the drugs.
And in May, Georgia Gov. Nathan Deal classified the state’s execution drug as a “state secret” when he signed House Bill 122 into law, calling it the Lethal Injection Secrecy Act.
That law paves the way for information about lethal injection drugs, such as their expiration dates, to be withheld from the public.
Before the Lethal Injection Secrecy Act was passed, it was made public in February that Georgia’s supply of pentobarbital would expire in March.
The American Civil Liberties Union filed a lawsuit for a similar situation in Colorado in May. The lawsuit sought to make the Department of Corrections reveal what drug or drugs will be used to carry out the execution of convicted death row inmate Nathan Dunlap.
Rubenstein has reiterated the thought that it’s of utmost importance that Louisiana be forthright about the drugs it intends to use to put state residents to death.
“Transparency in government is a critical aspect of our democracy,” Rubenstein said when he was first seeking access to Louisiana’s protocol. “If we are going to have the death penalty, then we need to know all the facts before an execution is carried out.”