Capital punishment in Georgia is facing a serious problem — not necessarily on moral grounds, but on practical ones.
The state no longer has access to the drugs it needs to carry out executions.
Last week, the U.S. Supreme Court decided not to hear several appeals filed by Troy Davis’ defense team, closing what appears to have been the final legal door in a local case that has had more than its share of twists and turns.
Davis has been on death row since being convicted in 1991 for the slaying of off–duty police officer Mark MacPhail during an incident in August 1989.
“I’m not sure there is much of anything left they can try, although I thought that before,” explains Laura Moye, the Death Penalty Abolition Campaign Director for Amnesty International.
The Davis case is among the most legally convoluted one might find, and has had no shortage of surprises, including an 11th hour temporary reprieve by Supreme Court Justice Clarence Thomas and last summer’s unprecedented evidentiary hearing before the U.S. Court Southern District’s Chief Judge William T. Moore.
Though no new date has been set for Davis’ execution, his death warrant could be delayed not by further appeals, as in the past, but by a lack of a drug used for lethal injections in Georgia.
On March 16 Drug Enforcement Administration (DEA) agents seized the Georgia Department of Corrections (GA–DOC) supply of sodium thiopental, a powerful anesthetic that is the first of three shots administered during lethal injection in Georgia and dozens of other states.
Since last year there has been a nationwide shortage of sodium thiopental because the drug’s sole U.S. manufacturer, a company called Hospira, stopped selling the drug domestically, despite its medical applications.
“Hospira provides these products because they improve or save lives and markets them solely for use as indicated on the product labeling. As such, we do not support the use of any of our products in capital punishment procedures,” the company wrote in a letter sent to the corrections departments of several states known to use the drug for executions.
After several months of “supply issues” in 2010, the company issued a statement on January 21, 2011 saying that it would cease production because of pressure from the Italian government to prevent the drug from use in capital punishment, or be held liable for their failure to do so, after the company moved manufacturing of sodium thiopental to a facility in Italy.
Germany and the United Kingdom have also banned export of the drug to the U.S. because of opposition to the death penalty.
Although there might be other sources of sodium thiopental, there are none approved by the Food and Drug Administration. According to Shelly Burgess, an FDA spokesperson, a new manufacturer would need to apply to the FDA and pass a series of regulatory benchmarks for safety purposes before being approved.
Burgess refused to comment on whether there were any pending applications for sodium thiopental manufacturers, or offer a timeline for the application process new manufacturers would undergo.
The drug’s shortage has become so critical that Attorney Generals from 13 states signed a letter sent to U.S. Attorney General Eric Holder in January asking for help.
“We solicit your assistance in either identifying an appropriate source for the sodium thiopental or making supplies held by the Federal Government available to the States,” says the letter to Holder.
The available supply, “measured in a handful of doses,” according to the letter to Holder, has also driven states to take matters into their own hands.
The reason the DEA seized GA–DOC’s supply of sodium thiopental was because the state had illegally imported the drug from a company called DreamPharma just prior to the UK’s ban on exporting the substance.
DreamPharma was run by a husband and wife out of a small rented space in the back of driving school in London, according to a report by the BBC.
The GA–DOC is certified by the DEA to possess sodium thiopental, a Schedule III controlled substance, but they are not permitted to import the drug.
DreamPharma had sold sodium thiopental to several states besides Georgia, including Arizona and California. But only Georgia’s supply of the drug was seized last month, prompted by a letter to the DOJ by attorney John Bentivoglio, who represents Georgia death row inmate Andrew Grant DeYoung.
In the eight-page letter, Bentivoglio outlines in detail how the state violated federal laws regulating controlled substances.
The attorney did not return calls requesting comment, but the intent of his letter is clear: the GA–DOC broke the law and should face an investigation, as well as any mandated legal consequences if the investigation proves the violations.
Three weeks after the letter was sent, the DEA seized the state’s supply of the drug, but it is unclear what if any consequences there will be.
The GA–DOC refuses to comment, and refers all questions back to a statement they issued several weeks ago:
“The Department requested assistance from the DEA to ensure our handling of controlled substances is in compliance. Because this is an ongoing regulatory matter, we will reserve further comment until the review is complete.”
The gag order on the subject extends far beyond the GA–DOC, and all federal agencies involved are willfully concealing information behind a curtain of bureaucracy.
The Atlanta division office of the DEA could not provide any information, despite their direct involvement, and referred this reporter to the DEA headquarters in Washington.
Another DEA spokesperson, who was willing to share fond memories of a training workshop she attended in Savannah several years ago, also refused to comment, citing a memo restricting any information on issues pertaining to sodium thiopental, and offered a phone number to the DOJ.
Inquiries seeking comment by the DOJ were rebuffed, as were separate requests for clarification on legal questions regarding the GA–DOC’s certification to possess controlled substances by the DEA, and whether that certification was in jeopardy following a violation of federal law.
While the federal agencies responsible for enforcing and interpreting laws in this country remain mum, Bentivoglio seems fairly certain of what the law prescribes.
“The DEA may revoke or suspend the violator’s registration to possess controlled substances and require that all controlled substances in the violator’s possession are delivered to the DEA,” he writes to Holder.
One of the other few points of clarity is that states are willing to go to great lengths to ensure their ability to carry out executions.
Late last week the Texas Department of Criminal Justice (TDCJ) was reported to Holder for illegally purchasing drugs under the name of a hospital that had been closed since the early 1980s, according to the blog Death Penalty News.
A letter to the DOJ from attorneys for Texas death row inmate Cleve Foster says the TDCJ concealed the fact that the Huntsville Unit Hospital closed 28 years ago, using it as a front to obtain controlled substances used in executions.
If the GA–DOC doesn’t lose its certification with the DEA, or face any censure for its actions, they will have options on how to continue administering the death penalty, even without additional sodium thiopental.
In 2000, the state legislature altered the state’s Death Penalty Statute when Georgia began using lethal injection rather than the electric chair. The wording of the law was left open.
“All persons who have been convicted of a capital offense and have had imposed upon them a sentence of death shall suffer such punishment by lethal injection,” reads Georgia Code 17–10–38.
While the paragraph continues with a definition of lethal injection, the law does not dictate what drugs are to be used in the process. Some states have legislatively prescribed drugs and require action by their General Assembly to switch methods.
The only specific reference to sodium thiopental in relation to Georgia’s method of execution is found in the execution protocol document produced by the GA–DOC and distributed to the warden, governor, and other relevant parties.
In other states, making changes to administrative protocols is subject to public scrutiny under sunshine laws and the Administrative Procedure Act.
In California, the ongoing series of public notices and hearings, as well as legal challenges that follow the results, have effectively delayed executions in the state for several years.
According to a spokesperson with Georgia’s Attorney General’s office, public action wouldn’t be required by the GA–DOC if they wanted to change protocol, meaning they could switch to another drug without any requirements for notifying the public.
Other states like Ohio and Texas have switched from a three-drug cocktail to a single dose of pentobarbital, a barbiturate similar to sodium thiopental, but more readily available.
Pentobarbital is manufactured by a Danish company called Lundbeck who, like Hospira — the former manufacturers of sodium thiopental — objects to the use of their drugs for capital punishment.
The company has written letters to states that use the drug for executions, expressing the company’s dissatisfaction with what they see as an abuse of their product.
In a move similar to Hospira, Lundbeck considered removing the product, sold as Nembutal, from the market, however, they were dissuaded by a concerned letter from a pediatric neurologist.
“When I learned of the potential to have a limited or discontinued supply of Nembutal it raised some concerns since at this time there is no equivalent barbiturate... discontinuing the supply of Nembutal could have a significant negative effect on patient care,” wrote Dr. Michael Frost, President of the Minnesota Epilepsy Group.
It seems worth noting the peculiar timing of this debacle for the GA–DOC — that once the already convoluted Davis case, more than two decades in process, seemed to have run out of options for appeal, the system of capital punishment in Georgia seemed so perilously close to collapse because of potential misdeeds committed in order for the system to survive.
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