Criminal Justice

State wants source of new lethal injection drugs to be kept secret from public

Less than two weeks after a federal judge allowed a Louisiana death-row inmate to find out more information about new drugs the state wants to use to kill him, the state has asked that some of that information be kept secret from the public.

On Feb. 3, convicted child-killer Christopher Sepulvado was granted a 90-day delay in execution, just two days before he was set to be killed with a controversial new mix of drugs.

U.S. District Court Judge James Brady granted the stay, in agreement with Sepulvado’s lawyers and the state, days after the state announced that officials intended to use a lethal mix of the sedative midazolam and the painkiller hydromorphone. The drugs were used in Ohio to kill rapist and killer Dennis McGuire, who reportedly gasped and snorted for fifteen minutes before dying.

Brady scheduled a hearing for April regarding the constitutionality of the drug combination. The state recently asked that the information regarding the provider of the drugs be kept under seal.

Further, the state wants to limit its disclosures on some information to just the current case, not its general protocol. That includes the source of the drug, the lot number, the identities of people involved in testing chemicals and any other healthcare professionals involved in execution.

The public would be denied information about who makes and tests the drugs and where the Department of Corrections obtained them.

The motion claims that if the information were made public, those involved could suffer from harassment, loss of business and other “adverse consequences.” Further, it reads, “The disclosure … would effectively prevent DOC from obtaining the drugs in order to meet its obligations under state law to carry out death sentences.

Written by attorney James Hilburn, working for the Department of Corrections, a related filing blamed news coverage of drug suppliers for the state’s inability to acquire drugs previously called for in the lethal-injection protocol.

Until last month, the state’s execution protocol called for pentobarbital, a drug that was once manufactured by Lundbeck, a Danish company. That company restricted its product from lethal injection use, however, and when Louisiana’s supply expired in September, the state was forced to look for other sources.

The Lens revealed in January that the state had received a non-disclosure agreement from the Tulsa-based compounding pharmacy The Apothecary Shoppe, a company not licensed to ship drugs to a pharmacy in the state, including the Louisiana State Penitentiary Pharmacy. The Apothecary Shoppe had been suspected of supplying pentobarbital to prison officials in  Missouri, and possibly to Georgia.

“The State has been required to seek out new manufacturers and drug suppliers repeatedly due to their identity being disclosed to the media, which has resulted in negative publicity and loss of business to those entities and a subsequent refusal to provide the drugs to DOC,” said Hilburn. “In fact, it is this disclosure that is precisely the reason why DOC and other state departments of corrections no longer have access to pentobarbital produced by a major pharmaceutical company.”

In a supplement to the state’s motion was a redacted document showing the state had acquired 10 vials of hydromorphone in 150 mg/5 ml concentration that expires April 1, 2015, and 25 vials of midazolam in 2mg/2ml concentration that expires in January 2015.

The manufacturer and the source of the drug were crossed out.

The state filed an unredacted copy of the document to the judge so he could privately confirm that the drugs came from a source approved by the U.S. Food and Drug Administration and are not expired, Hilburn wrote. Sepulvado’s attorneys, however, are not just concerned about FDA approval, but whether the supplier is licensed and approved to do business in Louisiana.

The Apothecary Shoppe, for instance, is not on the list approved by the state Board of Pharmacy.

State law spells out the few people involved in an execution who can be identified, such as the warden or the local coroner, declaring that most other individuals must remain confidential. However, the law doesn’t address the identity of businesses.

When Louisiana officials previously attempted to keep execution information secret, they were ordered by a federal judge to reveal that information.

In June 2013, Louisiana tried to keep its entire lethal-injection protocol secret.

U.S. Magistrate Judge Stephen Riedlinger denied the request, rejecting the state’s argument that revealing the lethal injection protocol would raise “serious security concerns.”

Like Louisiana, Georgia has fought to keep secret the information about its lethal injections, but it has met opposition in court.

In 2013, Georgia passed the Lethal Injection Secrecy Act, which prevents anyone from learning the manufacturer of lethal injection drugs and how they were obtained. On Monday, justices for Georgia’s Supreme Court heard arguments from death-row lawyers and state officials after a superior court judge issued a stay of execution for death row inmate Warren Lee Hill. Hill’s lawyers won the stay when they challenged the constitutionality of Georgia’s new secrecy act.

Georgia had argued, like Louisiana, that drug companies could suffer harassment if identities were revealed to the public. However, in an order granting Hill’s stay of execution, Atlanta Judicial Circuit Judge Gail Tusan said that the danger of harassment doesn’t trump the rights of individuals on death row.

Tusan wrote that information about lethal-injection drugs should be public so that the efficacy and potency of the drugs can be determined.

The recent Louisiana rulings, and Sepulvado’s stay of execution, were in connection with a lawsuit that contends Sepulvado has the right to know how he’s to be killed. He also says he has a constitutional right not to suffer a cruel and unusual death.

Sepulvado was sentenced to death in 1993 for killing his stepson. He beat the 6-year-old child with a screwdriver and held him in scalding water.

Sepulvado’s lawyers declined to comment, indicating that they will respond to the state’s motion soon.

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