A death-row inmate who has seen several execution dates come and go since he was convicted in 1993 of killing his stepson has a new date scheduled for early March – but the state may have trouble killing him.
That’s because lawyers and a state official indicate that the state has disposed of the lethal-injection drug because it was expired. The drug’s only manufacturer has said it will not sell current doses to officials who plan to use them for lethal injection.
Death-penalty opponents say that expired drugs could lose their effectiveness, resulting in an agonizingly painful death, or simply agonizing pain without death, which violate a prisoner’s protection from cruel and unusual punishment. Others, though, scoff at the thought and say many drugs lose little to no potency and could be used for executions.
Christopher Sepulvado has had execution dates set and has been granted stays while he’s argued his Constitutional rights in court in the past year. In the latest development, criminal court Judge Robert E. Burgess on Monday set an execution date of March 7, according to the clerk’s office of the 42nd Judicial District in DeSoto Parish, where Sepulvado was convicted.
However, the executive director of the Louisiana Board of Pharmacy indicated Monday that the state had gotten rid of its supply of Nembutal, the type of pentobarbital that a lawyer for the Louisiana Department of Public Safety and Corrections said in February would be used for Sepulvado’s lethal injection.
“Yes, that’s my understanding. They have been disposed of,” Executive Director Malcom J. Broussard told The Lens, when asked to confirm reports that the drug had been tossed out.
Gary Clements, an attorney for Sepulvado, received a letter Monday from the Pharmacy Board confirming that the state no longer has any supply of expired pentobarbital.
“We have confirmed that the [state penitentiary’s] pharmacy does not have any expired stock of pentobarbital,” the letter read.
The only supply of pentobarbital that the Louisiana Department of Public Safety and Corrections has admitted to having are six units of Nembutal that were purchased in May 2011, according to records the department’s lawyer gave The Lens. Those drugs have a shelf life ranging from 24 to 36 months.
Two manufacturers have produced the drug, but since 2011, Lundbeck, the original manufacturer, decided not to supply it to prisons for executions, and Akorn Inc. followed suit when it took over the drug’s production later that year.
In October, Clements said that the state’s supply for executing inmates had expired in September. Clements based his conclusion on documents that were attached to a legal filing accusing the state of not handing over all of the information on the drug.
The Louisiana Board of Pharmacy requires that any drugs that are expired be properly disposed of, whether they come from a run-of-the mill pharmacy on Canal Street or whether they are housed in the Louisiana State Penitentiary Pharmacy, Broussard said.
Like all other pharmacies licensed by the Louisiana Board of Pharmacy, the prison dispensary must follow the rules of the board, or it faces fines, risks losing its pharmacy permit or a faces number of other disciplinary actions, Broussard said.
The board conducts routine, unannounced inspections of pharmacies as often as once a year.
In fact, the Louisiana State Penitentiary Pharmacy was cited in March for failing to comply with the board’s rules of quarantining expired drugs before they’re shipped off for proper disposal, according to Broussard. Reports given to The Lens don’t say which drugs were expired.
In addition to the U.S. Constitution’s ban on cruel and unusual punishment, the state of Louisiana would be breaking the law if officials allowed the use of expired drugs, said Richard Dieter, the executive director of the Death Penalty Information Center.
The law is upheld by a 1976 Supreme Court decision, Estelle v. Gamble, which states that inmates may not be subject to unnecessary pain and suffering brought on by the government, Dieter said.
Sepulvado’s attorneys say they will be pressing the state to find out more information about how exactly prison officials intend to execute their client.
Not knowing, his lawyers say, violates Sepulvado’s due-process right, though a federal appeals court has disagreed with this argument in the past.
Still, the Capital Post Conviction Project of Louisiana Tuesday filed an expedited motion “to find out what drugs they do have and what they will be using,” said lawyer Kathy Kelly.
The U.S. Fifth Circuit Court of Appeals in December upheld an August decision by the same court that Sepulvado’s due-process right was not violated when the state withheld details of how it performs executions.
“Perhaps the state’s secrecy masks ‘a substantial risk of serious harm,’ but it does not create one,” the three-judge panel said in August.
The December ruling was made by eleven-judge majority, and four dissenting. However, Kelly points to the published opinion of three of the four dissenting judges, which echoes the complaints of Sepulvado’s lawyers: that the state is too secretive about its lethal-injection process.
“If the district had not stayed Sepulvado’s execution scheduled for February 13, 2013, Sepulvado likely would have been the first person to be put to death without definite official notice as to what drug or combination of drugs would be used to execute him and without an opportunity to object and be heard at a meaningful time and in meaningful manner,” Judges James L. Dennis, Carolyn Dineen King and James E. Graves, Jr. wrote.
The Louisiana Department of Correction’s lawyer, Jacqueline Wilson, did not immediately respond to calls for comment.