Three weeks before the scheduled execution of convicted child killer Christopher Sepulvado, the state had no lethal injection drugs on hand with which to kill him, but it was in contact with a supplier, a lawyer for the prison system said in an email to The Lens recently.
The Louisiana Department of Public Safety and Corrections’ execution protocol requires that the state procure the deadly sedative pentobarbital at least 30 days before a scheduled execution.
On Thursday, the department told Sepulvado’s lawyers that the state “is in the process of implementing the lethal injection protocol, including procuring the pentobarbital,” according to records provided to The Lens in response to a public-records request.
Sepulvado’s execution date is set for Feb. 5.
James L. Hilburn, a lawyer for the Department of Corrections, wrote that the state was in communication with at least one drug supplier regarding the lethal-injection drug, but he wouldn’t reveal the provider.
Louisiana’s secrecy regarding the drug’s supplier marks a turn from February, when the state readily identified the source of its previous supply of pentobarbital. The state acquired the drug from Morris and Dickinson Co., LLC, a provider that purchased it from the manufacturer, Lundbeck.
Louisiana had Nembutal, a name-brand, mass-produced version of pentobarbital, but the Department of Corrections disposed of it when the drug expired last year.
Because the sole mass producer of pentobarbital is unable to supply the drug to the state due to contractual obligations, The Lens last week asked the Department of Corrections for proof that the drug was being procured from an alternative source.
Other states around the country have been getting drugs from compounding pharmacies, labs that mix or alter prescription drugs. Death-penalty opponents say the compounded drugs may not be fully potent, and could result in a needlessly painful death or may not be effective at all. Both would violate the U.S. Constitution’s ban on cruel and unusual punishment.
In response to a public-records request, Hilburn on Wednesday said that the state had no documents regarding a current supply of compounded pentobarbital. Typically, such records would include an invoice, a record of transfer or an inventory.
The Lens also asked for any correspondence between the state and any supplier of pentobarbital. Hilburn said the state has these records, but he wouldn’t provide them because state law protects the identity of most people involved in executions.
The law he cites protects “persons” from being identified. The exemption is silent on identifying companies.
The cited exemption raises a key question: How is the Louisiana Pharmacy Board supposed to regulate the Department of Corrections if execution-drug suppliers are kept secret?
It is illegal for the state prisons — or a pharmacist — to procure drugs from a supplier that’s not licensed in Louisiana.
Officials in other states with the death penalty have either identified compounding pharmacies or asked that they be revealed after being pressured by journalists or state lawmakers to prove they weren’t breaking state laws.
In Texas, for example, a compounding pharmacist requested that his identity remain anonymous, but the state wasn’t able to keep it secret after the Associated Press submitted a Freedom of Information request to the Texas Department of Criminal Justice.
And in Missouri, state lawmakers are investigating recent executions committed by the state’s Department of Corrections following a report showing the state purchased drugs illegally from out-of-state pharmacies, according to an article in the St. Louis Public Radio and the St. Louis Beacon nonprofit newsroom.
“I don’t want our state to be able to do things the average citizen could not do,” House Minority Whip John Rizzo of Kansas City said in the St. Louis article. “I think it’s a very real possibility that our state is obtaining this drug from another state without the proper protocol.”
Lawyers worry that state is getting drug illegally
In a letter to the Louisiana Department of Corrections dated Jan. 10, Sepulvado’s lawyers told officials that they have reason to believe the state is procuring drugs illegally from a compounding pharmacy in Oklahoma.
“We write you with some urgency to confirm or deny credible reports we have that, in contravention of Louisiana and federal law, the Department of Corrections is seeking lethal-injection drugs from compounding pharmacies in Oklahoma in addition to other states,” Capital Post Conviction Project attorney Kathleen Kelly wrote.
“On behalf of Christopher Sepulvado, we demand that the Department cease and desist from pursuing this illegal activity.”
The Department of Corrections didn’t immediately respond to comment concerning the letter.
Sepulvado has had many execution dates come and go as he’s fought his death sentence in court since being convicted of killing his 6-year-old stepson in 1993. Sepulvado beat the child with a screwdriver, then held him down in scalding water.
Sepulvado had recently won a stay of execution by challenging the new method for execution, saying that he has a chance of suffering a cruel and unusual death if the drugs are ineffective. He also said has a right to know exactly how the state intends to execute him.
That stay was reversed when the U.S. Fifth Circuit Court of Appeals said in December that Sepulvado’s rights were not violated when the state withheld details of how it performs executions.
This month, however, federal Magistrate Judge Stephen C. Riedlinger in Baton Rouge gave the state until Friday to tell Sepulvado’s lawyers exactly how the department would execute him.
“The information sought by the plaintiff is relevant to significant and disputed issues, including whether the state’s execution protocol lacks adequate safeguards to ensure that their respective executions are performed without incident,” Riedlinger wrote.