Louisiana must reveal details of how it plans to kill two death row inmates, a federal judge ruled Tuesday in Baton Rouge. The ruling was a rebuff to the state Department of Safety and Corrections, which was trying to keep its lethal injection protocol under seal.
In Tuesday’s ruling, U.S. Magistrate Judge Stephen Riedlinger rejected the state’s argument that revealing the lethal injection protocol would raise “serious security concerns.”
“Defendants’ motion is not supported by any affidavit or other evidence providing even one example of improper interference with an execution caused by or related to the dissemination of the current or any previous Louisiana execution protocol, or which shows that the defendants’ security concerns and the asserted risk of manipulation are more than mere speculation or conjecture,” Riedlinger’s ruling stated.
The judge ordered the state to turn over the protocol to defense attorneys within 14 days. Previous court documents had given the state until July 2014 to turn over those materials.
Louisiana isn’t the first state to try to keep the lethal injection process secret. In May, the American Civil Liberties Union of Colorado sued the state over the lack of transparency in its death-penalty policy.
Texas and Mississippi, by contrast, have disclosed the type and amount of the drug or drugs they use to induce the death of condemned prisoners.
Questions about death penalty drug
Riedlinger’s ruling was on a motion in connection with a federal lawsuit filed in December, in which death row inmate Jessie Hoffman sued Governor Bobby Jindal and various members of the Louisiana Department of Safety and Corrections. Hoffman is sentenced to die for the 1996 kidnapping, rape and murder of advertising executive Mary “Molly” Elliot.
In February, death row inmate and convicted child killer Christopher Sepulvado joined Hoffman’s suit. Sepulvado was convicted of torturing and murdering his six-year-old stepson in 1992.
Both plaintiffs assert that the principle of due process requires that they be fully informed how the state intends to execute them.
The plaintiffs also contend that Louisiana’s method of execution is unconstitutionally cruel and unusual, according to court documents.
One of the main issues of concern is the type and expiration date of the drug the state plans to use to execute these inmates.
Sepulvado’s attorneys had been trying to get the state to turn over the lethal injection protocol since before the convicted killer joined Hoffman’s case. In court proceedings to date, the state had revealed only that it was abandoning a three-drug cocktail used in previous lethal injections and turning to a one-drug protocol for Sepulvado’s execution.
Citing public records law, The Lens asked for expiration dates and current inventory records of pentobarbital, the drug the state said it planned to use.
Nembutal, the type of pentobarbital the state said it bought, has a maximum three-year shelf life, according to Lundbeck, the company that manufactured the drug when Louisiana bought it in May 2011.
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.
Proposed Protective Order
The state’s proposed protective order would have limited the injection protocols to the case currently being litigated and would have restricted dissemination of the information to plaintiffs, attorneys and legal experts.
In other words, the press and general public would have been denied information about the protocol, including information such as drug inventory records and who administers them.
Additionally, the state requested certain redactions, including telephone numbers and other allegedly confidential data related to execution schedules and procedures, according to legal documents.
“The U.S. Supreme Court has noted that pretrial discovery has a significant potential for abuse, including the ability of litigants to obtain and publicly release information that could be damaging,” reads a memo in support of the protective order, signed by Louisiana Attorney General Buddy Caldwell.
But one law cited in the order is unrelated to damage resulting from a security breach.
“The court may, for good cause, issue an order to protect a party from annoyance, embarrassment, oppression, or undue burden or expense,” the document states.
Pam Laborde, the communications director for the Department of Corrections, told The Lens in an email that the department was pondering its next move.
“The Department is in the process of reviewing the magistrate’s ruling and evaluating options,” Laborde wrote.
Protocols in other states
In successfully arguing for their motion, defense attorneys for Hoffman and Sepulvado noted that lethal injection protocols have been made public in other states with no harm or prejudice to the state.
“Not only are lethal injection protocols widely available in other states, the courts have rejected the very argument that the Defendants seek to advance,” reads the motion, signed by defense attorney Michael Rubenstein.
Texas, for example, publicly adopted a new protocol on March 15, 2011 that goes into detail about the state’s execution method, including the location of the condemned, the timing of the inmate’s transport to the death house and other information that impinges on security.*
Texas also details protocol for “inventory and equipment check” and a detailed description of how the lethal injection drugs — pentobarbital, pancuronium bromide and potassium chloride — should be mixed.
Mississippi also details a protocol that includes an inventory check and the quantity and content of syringes.
According to Mississippi’s documents, sodium pentothal is to be used, unless unavailable, in which case the state would use pentobarbital, the document reads.
“The inventory shall be conducted not less than twenty-four (24) hours and not more than ninety-six (96) hours, of the scheduled execution,” the protocol for Mississippi reads, according to court documents.
In an email to The Lens, Rubenstein wrote: “We are pleased that Judge Riedlinger denied the motion and has ordered the State to produce the protocol, which is something we have been seeking for quite a long time. Otherwise, the ruling speaks for itself.”
*Correction: The original version of this story omitted the year that Texas adopted its new protocol. (June 8, 2013)