Criminal Justice
 

State failed to turn over key public records about execution drugs

In response to several request from The Lens, the state denied that these records existed.

In response to several request from The Lens, the state denied that these records existed.

Louisiana prison officials violated the state’s public-records law repeatedly last year when they told The Lens that documents did not exist regarding the supply of drugs used in executions.

Since those denials, The Lens has obtained dozens of state documents from that time that would have satisfied our public-records requests. They shed light on the state’s unsuccessful scramble to execute a prisoner before a key lethal-injection drug expired, as well as efforts to obtain a replacement drug through the gray market. They also include inventories of drugs and email exchanges with top officials regarding the drugs.

Prison officials said several times they had no records, including emails, that would show the expiration date of the drug set to be used in the executions, pentobarbital.

But a June 19, 2012 email sent to James LeBlanc, acting Chief of Operations for the Department of Corrections, proves otherwise.

“I believe Secretary LeBlanc called about the availability of the drugs last week (I was out on leave}, when we thought there could be an execution. Per your last correspondence 3/7/2012, there was enough available for one execution (3 complete sets),” a Department of Corrections official wrote in an email to a warden and to LeBlanc.

“The pentobarbital sodium expires 9/13 and is not available after that.”

When confronted about the existence of documents showing the drug’s expiration date,  officials with the state Department of Public Safety and Corrections said they conducted a “diligent” search of records and came up empty. They insisted they didn’t knowingly withhold information. When The Lens sent copies of the withheld documents, state officials did not respond.

However, their search was more fruitful when they had to produce the same documents as part of an ongoing federal lawsuit by a death-row inmate. Many of the documents The Lens sought were entered into the federal-court record for the case brought by convicted child killer Christopher Sepulvado.

“It’s a violation of the public-records law not to produce documents that are requested if they exist,” said Mary Ellen Roy, a New Orleans-based lawyer who specializes in public records law.

Roy said that the state corrections department could face penalties if the documents were deliberately withheld from The Lens.

The Lens asked at least three times last year for documents showing the expiration date for pentobarbital. Louisiana planned to use pentobarbital for executions in 2013.

At the time, lawyers for death-row inmates objected that the drug would likely expire before the next execution transpired. An expired drug could be unreliable and inflict a cruel and unusual death, they argued, which is banned by the U.S. Constitution. And it would be illegal for a pharmacy, even the state prison’s pharmacy, to knowingly dispense an expired drug.

In early 2014, The Lens received proof that the state had several records showing the drug expired — while an execution was pending.

The Lens obtained three separate Department of Corrections documents, from other sources, all showing the same September 2013 expiration date of the state’s supply of pentobarbital.

Death-penalty opponents contend that state officials may not have wanted the public to know that their lethal-injection drug would expire before getting the chance to execute Sepulvado. Sepulvado was issued several death warrants last year, but avoided execution when judges allowed him more time to investigate his proposed method of death.

Sepulvado was convicted of murdering his 6-year-old stepson by beating him in the head with a screwdriver and immersing his body in scalding water. According to court files, the incident happened after the child was forced to sleep in soiled clothes and denied food for defecating in his pants. His death was attributed to the scalding water.

Jacqueline Wilson, a lawyer for the Department of Corrections, wrote in an email recently that the state didn’t hide information from The Lens.

“Be assured that the Department has never intentionally withheld documents from you or any other member of the public in response to a public records request.  We turned over all documents identified during the course of a due and diligent search that existed at the time of the requests.”

Other revealing information wasn’t handed over

Expiration dates weren’t the only records that prison officials didn’t provide.

Starting in Feburary 2013, The Lens also requested purchase records, proof of inventory and any other communications about the drug, all dating back to 2010.

In response, Wilson and prisons spokeswoman Pam Laborde said corrections officials had only documents showing the agency bought pentobarbital for about $5,000 in May 2011, and they turned over those records.

“In speaking to Mrs. Wilson, it is my understanding that she has disclosed all the public records in existence that pertain to your request,” Laborde wrote The Lens in a March 2013 email.

The Lens then asked whether documents existed but were being withheld for legally appropriate reasons, as the public-records law allows. Wilson reiterated Laborde’s statement, saying that “no documents” had been withheld from The Lens.

“No records were withheld on the basis of being ‘nonpublic,’” Wilson wrote.

But documents entered into the court record for Sepulvado’s lawsuit show the state had plenty of records that matched our requests. They include proof that the state had inventory of the drug, as well as a handful of letters from the governor of Denmark and from the drug’s manufacturer, Lundbeck, begging the state not to use its product for capital punishment.

The state also withheld several emails between officials discussing dwindling availability of lethal-injection drugs and what to do about replacing them. The subject is of national significance as pro-death penalty states around the country now turn to unorthodox measures, such as relying on loosely regulated compounding pharmacies, or experimenting with never-before-tried combinations of drugs, to fulfill lethal injection drug needs.

States have been struggling to replace their lethal injection supplies since manufacturers imposed restrictions that their drugs not be used for executions. Louisiana’s Department of Corrections emails show that state officials have been worried about the ability to perform executions since at least October of 2010 — yet officials failed to share that information with The Lens.

“There are certainly other states that have been secretive, but the state of Louisiana has gone to extraordinary lengths to shroud its lethal injection process in secrecy,” said Deborah Denno, a Fordham University law professor and death-penalty expert. “In many ways, states are becoming more secretive when they start to have more problems.”

Denno added that the system shouldn’t work that way.

“States should be providing the kind of information we need to assure ourselves that executions are being carried out in a just way,” she said.

We’re still waiting

In December 2013, after it came to light that the pentobarbital had expired in September of that year, The Lens wrote a letter to officials asking for documents that had previously been withheld.

The Lens wrote:

The Department did not give The Lens several records that appear in this story, after those records were filed into Pacer as part of a motion made by Sepulvado’s lawyers. The Lens would like to receive any records that have been withheld concerning the acquisition, storing, administering and proper disposal of Schedule II drugs, specifically pentobarbital.

In response, The Lens received a statement that the Department of Corrections couldn’t comment due to ongoing litigation.

Although records can be legally withheld from the public, the state agency is required to give a statutory reason why. In the cases mentioned in this story, neither Laborde nor Wilson gave legal reasons explaining why any of the documents were kept from The Lens.

More than a year after sending an initial request for information about pentobarbital, The Lens has yet to officially obtain all documents that have surfaced relating to pentobarbital purchased by the Department of Corrections.

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