Just nine days before the scheduled lethal injection of convicted child killer Christopher Sepulvado, the Louisiana prison system is changing its execution protocol because it can’t get a necessary drug.
The state is adding the option of using the same two-drug cocktail that was used recently in an unusually drawn-out execution in Ohio — an effort that drew howls of criticism from death-penalty opponents for inflicting unnecessary pain and suffering on the prisoner.
The Louisiana Department of Public Safety and Corrections announced the addition of the two-drug option Monday night through a statement released by prison system spokeswoman Pam Laborde.
“The reason for the change is that DOC has been unable to procure the drug, pentobarbital, specified in the one-drug protocol,” Laborde wrote in an emailed statement. “The Department will continue to attempt to obtain the drug or drugs necessary for either of the two protocols.”
Questions regarding the mix of various lethal-injection drugs have arisen since Dennis McGuire “appeared to gasp several times and took more than 15 minutes to die” when he was executed Jan. 16 in Ohio. He was given a mix of the sedative midazolam and the painkiller hydromorphone.
Laborde confirmed to The Lens that those would be the drugs in Louisiana’s lethal-injection cocktail.
Sepulvado’s attorney’s released a statement by email criticizing the change.
“The state has changed its execution protocol to allow for an experimental drug combination that has never been tried in this state and which caused a botched execution in Ohio earlier this month,” it read. ”This last minute bait-and-switch by the Louisiana Department of Corrections once again demonstrates that the State is not prepared to move forward with Mr. Sepulvado’s scheduled execution in a manner that comports with state and federal laws, and the U.S. Constitution.”
Last week, state officials said they hadn’t yet secured pentobarbital, but that they were still trying.
The Lens reported Saturday that the state had considered illegally getting the drug from a supplier not licensed to do business in the state.
Laborde closed her brief email by writing: “DOC is committed to ensuring the jury’s verdict is carried out in accordance with law.”
A federal magistrate judge in Baton Rouge on Jan. 10 gave the state a deadline of last Friday to tell him about any planned changes to the execution protocol.
State documents given to Sepulvado’s lawyer as part of a lawsuit showed communications between the deputy warden of the Elayn Hunt Correctional Center and the pharmacy manager of The Apothecary Shoppe, a compounding lab not licensed by the Louisiana Board of Pharmacy. Included in the emails was a non-disclosure agreement that spells out the confidentiality agreement between the pharmacy and the signatory.
The purchase of that drug would be illegal under state law, which says that any drug procured from out of state must be from a pharmacy licensed or permitted within Louisiana.
The notice of the drug change came hours after Sepulvado’s lawyers asked Louisiana to delay his execution because it had not yet provided them with information about precisely how the death row inmate was to be killed.
Gary Clements and Kathy Kelly, lawyers for Christopher Sepulvado, requested the stay of execution, and they were joined by Thomas Goldstein, a Harvard Law School professor.
Filed with U.S. District Judge James Brady and Magistrate Judge Stephen Riedlinger in the Middle District Court of Louisiana, the filing alleges that the state has violated its own protocol by being late in procuring the necessary drug outlined in the document.
The protocol requires that the state procure at least 15 grams of pentobarbital 30 days before any scheduled execution.
It was predictable that the the state would change its protocol if it couldn’t find a source of pentobarbital, Sepulvado’s lawyers wrote.
“That confirmed violation of the 2013 Protocol strongly suggests that the state will modify its procedures and thus impose an unnecessary and unconstitutional risk of inhumane punishment on petitioner,” the application reads.
The court document was filed in connection with a lawsuit on behalf of Sepulvado and death row inmate Jessie Hoffman. Hoffman filed the lawsuit in December 2012, and Sepulvado intervened January 2013, after the state refused to disclose how it would execute him. In February 2013, the state announced a change from a three-drug mixture of lethal injection drugs to the single drug.
Sepulvado and Hoffman’s lawsuit contends that condemned inmates have a right to know how they’ll be executed, citing a constitutional due-process right.
Sepulvado, who has had several execution dates come and go in the past year, received a death warrant in January after the U.S. Fifth Circuit of Appeals in December upheld a decision that the state’s lethal injection secrecy did not violate his due-process right.
But later in January, Riedlinger in Baton Rouge ruled that the state needed to release additional information about the execution process, including where it would be obtaining its lethal injection drug and if the protocol would be changing.
On Monday, Sepulvado’s lawyers also filed a document with the U.S. Supreme Court asking them to review the decision made by the Fifth Circuit Court of Appeals.
The court document says, “The growing practice of shielding execution protocols from judicial scrutiny heightens the risk that states will devise protocols that violate the Eighth Amendment [banning cruel and unusual punishment]. Governmental practices are most likely to depart from constitutional requirements when they are insulated from meaningful review.”
Sepulvado, from DeSoto Parish, was convicted in 1993 for beating his 6-year-old stepson with a screwdriver and then holding him down in scalding water.