Death row inmate Christopher Sepulvado, a convicted child killer, wants more information about how the state intends to execute him.
So does The Lens.
The Lens started investigating Louisiana’s capital punishment plans after the state said earlier this year it was abandoning a three-drug cocktail used previously in lethal injections and turning to a one-drug protocol for Sepulvado’s execution.
The state’s responses to inquiries by The Lens and by Sepulvado’s attorneys invite varying interpretations. It is possible to conclude, for example, that the Louisiana Department of Safety and Corrections has no drugs on hand for use in executions or that it has the drug it wants to use — pentobarbital — but no record establishing its expiration date.
Defense attorneys were told the records regarding the state’s current inventory of execution supplies are not available to the public or that their release would endanger public safety. The Lens was told records relating to the current inventory of the drug did not exist.
Efforts to get the state to clarify its responses have been unavailing.
A question of efficacy
In February, as Sepulvado appealed his pending execution, a federal judge called a hearing because of concerns raised by defense attorneys over lethal injection protocol. The state acknowledged its intention to use pentobarbital, but did not disclose the expiration date on the state’s supply.
In fulfillment of their duty to explore every possible grounds for stalling or aborting an execution, defense attorneys argued that if Louisiana’s supply has outlasted its relatively brief shelf life, its use may make an execution painful or prolonged, in violation of the U.S. Constitution’s ban on punishments that are “cruel and unusual.” Additionally, they said lack of notice violates due process.
“It is imperative that the Louisiana DOC [Department of Corrections] be forthright … about where it got the pentobarbital it plans to use and whether it is an FDA-approved product,” said Michael Rubenstein, a lawyer who filed a federal lawsuit on behalf of both Sepulvado and another death row inmate.
“Louisiana should not be permitted to move forward with any execution until it provides complete information. If we are going to have the death penalty, then we need to know all the facts before an execution is carried out,” Rubenstein said.
In February, state corrections officials issued an affidavit, signed by pharmacy director Mary Labatut. It asserted that the corrections department obtained its supply of pentobarbital from the Lundbeck pharmaceutical company.
Department officials later told The Lens that the purchase was made in 2011 in the form of Nembutal, Lundbeck’s proprietary brand of pentobarbital. Nembutal has a long history of use — and abuse — as a tranquilizer; indeed, it was implicated in the 1962 overdose that killed movie star Marilyn Monroe.
But when The Lens requested further documentation under the state’s public records law, the department said it has no records pertinent to its current inventory of Nembutal, including expiration dates on the supply it says it got in May 2011.
Akorn Inc., the pharmaceutical company that bought Lundbeck’s Nembutal business in 2011, says the drug has an effective shelf life of 24 months. (Lundbeck had told The Lens the drug’s shelf life was 36 months.)
According to Katie White, a communications manager at Lundbeck, the drugs would have been shipped with labeling or packaging that included the expiration date.
“All of Lundbeck’s products are required by law to include an expiration date,” White said.
Louisiana’s records law provides for public access to any “documentary materials, regardless of physical form or characteristics,” that have been possessed or used by any public body. In the opinion of Robert Travis Scott, president of the Baton Rouge-based Public Affairs Research Council, that makes the labels on bottles or drug packaging public records to which state officials must provide public access.
If the corrections department has Nembutal on hand but no expiration records, then the drug containers have been stripped of their labels or packaging and the information on expiration dates that would be printed on those labels.
“As I’m sure you are aware…. the Department is not required to create a document where one does not exist in responding to a public records request,” DOC communications director Pam Laborde told The Lens.
In exchanges with The Lens, Laborde wouldn’t comment further about whether the corrections department accepts that labels or drug packaging are public records. In an email, a lawyer with the department, Jacqueline Wilson, wrote: “The Department of Corrections has produced all documents in response to your two records requests and feels it has satisfied its obligation pursuant to Louisiana Public Records Law.”
Asked for an opinion on whether the labels are records that must be made available to the public, the Louisiana attorney general’s office referred The Lens to its website. But no opinions have been issued by the office relating to drug packaging and the public records law.
A rush to execute
Louisiana isn’t the only state in which use of pentobarbital, now the nation’s most common execution drug, has been questioned.
Pentobarbital came into wide use in response to a shortage of one component of the three-drug cocktail used previously in executions. But in July 2011, a restriction imposed by Lundbeck — that Nembutal not be used in executions — made pre-restriction pentobarbital harder to come by. When the company sold its Nembutal business, Lundbeck said Akorn had also agreed not to sell to state departments of correction.
With defense attorneys mounting the “cruel and unusual” argument against use of aging pentobarbital, Georgia, for example, recently hurried the execution of inmate Andrew Allen Cook before its supply passed a March 1 expiration date.
In response to follow-up requests from The Lens, Wilson said that the only related records corrections officials could produce showed a purchase of Nembutal for about $5,000 in May 2011, about two months before the manufacturer’s ban.
The five pages of records include an invoice dated May 19, 2011, showing that the Elayn Hunt Correctional Center received six 50-milliliter units of Nembutal from Morris and Dickinson Co., LLC, a wholesale distributor based in Shreveport.
If the drugs were manufactured more than 13 months prior to Louisiana’s purchase, their maximum shelf life — three years, according to Lundbeck; two years, according to Akorn — has ended. Open records laws do not apply to corporate paperwork, and Morris and Dickinson declined to provide information about the expiration date of the drugs sold to the state.
“Like any drug, if it’s past its expiry date, then efficacy will be uncertain,” Dr. David Nicholl, a neurologist and human rights activist told The Lens via Twitter.
In 2011, Nicholl filed a petition in the Supreme Court of Florida concerning Nembutal.
“Nembutal is not intended to induce surgical anesthesia; should it fail to work effectively in the lethal injection procedure, the prisoner risks suffering a tortuous death,” Nicholl said.
According to Megan McCracken, of the Eighth Amendment Resource Counsel with the death penalty clinic at the University of California’s Berkeley law school, the latest possible expiration date for any 50 milliliter vials of Nembutal that the Corrections Department received before the distribution restriction went into place would be November 2013. McCracken said she received that information from Lundbeck.
Laborde said it would be “inappropriate” for a representative of the department to comment on the matter with litigation pending.
In the Sepulvado case, U.S. District Court Judge James Brady ordered a stay of execution on Feb. 7. Sepulvado had been scheduled to die by lethal injection on Feb. 13, in what would have been Louisiana’s first execution since 2010.
A federal lawsuit filed in December on behalf of another death row inmate, Jessie Hoffman, argued that the constitutional prohibition of “cruel and unusual punishment” could not be assured, given the lack of information about the state’s plans for the pending executions. Sepulvado’s case was joined with Hoffman’s for purposes of the federal suit.
State corrections officials have been involved in other lethal injection lawsuits since early 2010.
In January 2010, death row inmate Nathaniel Code filed a lawsuit challenging Louisiana’s method of adopting rules governing how it executes inmates. Code charged that the state changed its rules for carrying out lethal injections without providing public notice of rule changes, as required under the Louisiana Administrative Procedures Act.
Louisiana responded by countersuing all condemned inmates in an effort to block any of them from challenging the state’s lethal injection procedures, according to information in a motion for preliminary injunction, filed by defense lawyer Gary Clements in Baton Rouge district court.
In February corrections officials denied the allegation that its pentobarbital was obtained from out of the country or in defiance of current restrictions on use of the drug for state executions, according to a court filing.
In response to a records request from Clements for “any and all records reflecting the current inventory of supplies relating to lethal injection,” the state sang a different tune. Instead of arguing that the records did not exist, the state’s response to Clements pivoted on the claim that releasing the information would jeopardize prison security.
“Records containing the inventory of supplies relating to lethal injection are directly related to the internal security of the Department and releasing such records creates a potential security risk, making such information nonpublic,” officials told Clements in a response to his request, which they shared with The Lens.
Clements told The Lens that the department has until May 2014 to gather and produce the requested documents — a deadline that would exceed the expiration date of any Nembutal from Lundbeck, according to McCracken, with a shelf life of three years or less.
According to the federal Drug Enforcement Administration, pharmacies that handle what are called Schedule II drugs — pentobarbital is such a drug — are required to file an updated inventory every two years.
But, according to William Kirchain, a professor with Xavier University’s College of Pharmacy, law enforcement agencies, including corrections departments, are exempt from registering with the DEA.
“There’s no standard that I’m aware of,” Kirchain said.
On the DEA website, the organization outlines some vague rules about administering schedule II drugs to incarcerated patients.
Among the regulations: “The institution maintains appropriate safeguards and records regarding the proper administration, control, dispensing, and storage of the controlled substance listed in Schedule II.”
Rubenstein and Clements deplore the lack of documentation as well as impediments to public access.
“Transparency in government is a critical aspect of our democracy, and yet lethal injection procedures in Louisiana have been, and continue to be, shrouded in secrecy,” Rubenstein wrote in an email to The Lens.