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October 23, 2010

A new kind of legal attack on lethal injection drug in Arizona

As detailed in this New York Times article, which is headlined "Use of Drug Challenged in Death Penalty Case," lawyers for a condemned inmate in Arizona are trying a new legal attack on the state's lethal injection plans. Here are the details:

Arizona plans to execute Jeffrey Landrigan next week, but his lawyers are arguing that one of the drugs that the state intends to use to end his life may not be good enough.  The planned execution of Mr. Landrigan, convicted of murder in 1990, coincides with a shortage of the anesthetic used in the state’s execution protocol, sodium thiopental.  The thiopental shortage has already caused delays in executions around the country.

Arizona officials have the drug, but defense lawyers for Mr. Landrigan are asking to stay the execution until the state reveals where it got its supply.  If Arizona obtained the drug from an overseas supplier, they argue, it may be substandard and violate Food and Drug Administration rules for importation.

Kent Scheidegger, legal director for the Criminal Justice Legal Foundation, a group that supports the death penalty, said that arguing over the safety of a drug for executions is “absurd.”

“As long as it’s a real drug manufacturer and not mixed up in somebody’s garage, it doesn’t matter where it came from,” Mr. Scheidegger said.  While the Food and Drug Administration is supposed to determine whether drugs are safe and effective, he said, “in this case, safe and effective are opposites.”...

Megan McCracken, an adviser on lethal injection issues to the death penalty clinic at the University of California, Berkeley School of Law, argued that the origin of the drug used was nonetheless important under the law.

She cited the Eighth Amendment prohibition against cruel and unusual punishment, and a 2008 decision by the Supreme Court.  In that case, Baze v. Rees, the court left room for challenges to execution methods that involve a demonstrated risk of severe pain compared with available alternatives.  To Ms. McCracken, the lack of information about the drug opens Arizona to a challenge under the Baze decision. “Its provenance matters,” she said. “I don’t think you can say that thiopental is thiopental is thiopental.”

Judge Roslyn O. Silver of United States District Court on Thursday asked the state to voluntarily reveal where the drug had come from.  She set the matter for oral argument on Monday.

The state, in a brief filed Friday, declined to identify the source of the drug, citing state confidentiality laws intended to shield those involved in executions from harassment by death penalty opponents.  It denied that the drug to be used was substandard, and suggested that the criticism of the drug was an “improper delay tactic.”  The state, the brief said, “takes its responsibility to carry out an execution seriously and has attempted to construct a protocol to carry out executions as humanely as possible.”

October 23, 2010 at 09:02 AM | Permalink

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Comments

If abolitionism has come to this.....yikes. I prefer peter's religious lectures. At least they have conviction.

Maybe the next challenge will be to demand discovery of whether the executioner's underwear is too tight.

Posted by: Bill Otis | Oct 23, 2010 10:04:15 AM

Baze doesn't contemplate discovery. That judge ought to follow the law.

Posted by: federalist | Oct 23, 2010 10:26:23 AM

federalist --

Following the law is not exactly de rigueur among capital defense lawyers. Indeed, the more stuff you throw up against the wall -- law or no law -- the more likely you are to win the "Champion of the Year Award" at the next "Killers Are Cool and Victims Are Whiners" conference.

Posted by: Bill Otis | Oct 23, 2010 12:13:03 PM

It appears to be frivolous, since there is no evidence of suffering based on drug origination.

The lawyers should be made to pay all costs from their personal assets.

Posted by: Supremacy Claus | Oct 23, 2010 12:58:52 PM

@federalist
Sadly, Baze has had very little impact and I doubt the judge has it in mind.

Posted by: MikeinCT | Oct 23, 2010 1:00:15 PM

The death row inmates attorney will raise every possible argument they can to get a stay or a life sentence. The one in Conn was interesting. They wanted to tell the jury how much capital cases cost?
I once did a job for a federal district judge and he told me that any change in the law, protocol or just about anything will open the door to more litigation. He could not have said it better. MikeinCt, I agree about Baze. Some of the courts below continue to dance around it, entertaining endless motions.

Posted by: DaveP | Oct 23, 2010 1:20:21 PM

I consider this type of frivolous motion, refusal to dismiss on filing, and any hearing to be lawyer corruption, ripping off the taxpayer. All parties participating in this scheme should be arrested and sent to federal prison, even in the absence of ex parte communication or collusion. Use the RICO statute.

Posted by: Supremacy Claus | Oct 23, 2010 1:33:35 PM

Clearly, the law and order crowd is not concerned with the drug being lawfully imported pursuant to the Food and Drug Administration rules.

Is anyone surprised? The best guess is that government is lying and doesn't want to protect the manufacturer, but wants to protect its illegal importation (from some out of country cartel?)

Fortunately for the government, there isn't any 100:1 ratio in play.

Posted by: George | Oct 23, 2010 1:37:08 PM

"She cited the Eighth Amendment prohibition against cruel and unusual punishment, and a 2008 decision by the Supreme Court. In that case, Baze v. Rees, the court left room for challenges to execution methods that involve a demonstrated risk of severe pain compared with available alternatives. To Ms. McCracken, the lack of information about the drug opens Arizona to a challenge under the Baze decision. “Its provenance matters,” she said. “I don’t think you can say that thiopental is thiopental is thiopental.”

George: Assume the government obtained the drug illegally, from a crack dealer, who got it from someone who stole it from a drug store. The claim is that a cruelty will take place, not that an illegality has taken place. You are making a separate argument than the prohibitionists. Your illegality argument is not frivolous. The cruelty argument is.

Posted by: Supremacy Claus | Oct 23, 2010 2:47:17 PM

S.C., the argument appears to be two pronged.

"Arizona officials have the drug, but defense lawyers for Mr. Landrigan are asking to stay the execution until the state reveals where it got its supply. If Arizona obtained the drug from an overseas supplier, they argue, it may be substandard and violate Food and Drug Administration rules for importation."

Do you really believe the government is trying to protect the manufacturer and not CY (its) A?

Another interesting question would be if the drug manufacture supports candidates that support the death penalty, but the drug may not be expensive enough to justify contributing to campaigns... unless there is a drug shortage.

Posted by: George | Oct 23, 2010 3:49:29 PM

George, point to the place in Baze where discovery is authorized.

Posted by: federalist | Oct 23, 2010 4:15:46 PM

Did I say the reliance is on Baze for that argument? No. Neither of us have read the briefs, it seems.

You seem to argue that it doesn't matter if the drug was obtained illegally because the defense does not have the right to that discovery. You want to government to get off on a technicality?

Is that your argument?

Posted by: George | Oct 23, 2010 4:23:06 PM

George --

The untethered assumption that things from outside the United States are inferior is known as xenophobia. You wouldn't have a case, would you?

Posted by: Bill Otis | Oct 23, 2010 4:24:46 PM

George: Although a lawyer gotcha, the government should not be allowed to engage in an illegality, such as unauthorized importation. The issue is bigger than that of an execution, keeping the government within legal bounds. They could remedy that problem by applying for an "humanitarian" exception to import a drug not available in the US. This importation approval is routine prior to approval of a drug by the FDA. After approval of a drug, the FDA will not allow such importation, and the state would encounter resistance.

If the drug came from an approved supplier, whom the state wants to protect from harassment, it may choose to reveal the source and specifications of the drug only to a judge. She will declare it proper, keeping identities secret. The state lawyers know that option, and are not choosing it. Suspicious.

Posted by: Supremacy Claus | Oct 23, 2010 4:35:57 PM

Nice strawman, Mr. Bill, but fail.

Information on Importation of Drugs
Prepared by the Division of Import Operations and Policy, FDA

The United States Federal Food, Drug, and Cosmetic Act (Act) (21 U.S.C. section 331) prohibits the interstate shipment (which includes importation) of unapproved new drugs. Thus, the importation of drugs that lack FDA approval, whether for personal use or otherwise, violates the Act. Unapproved new drugs are any drugs, including foreign-made versions of U.S. approved drugs, that have not been manufactured in accordance with and pursuant to an FDA approval. Under the Act, FDA may refuse admission to any drug that "appears" to be unapproved, placing the burden on the importer to prove that the drug sought to be imported is in fact approved by FDA. Absent evidence that the specific drugs sought to be imported from a foreign country/area have been manufactured pursuant to an approved new drug application, in the manufacturing facility permitted under the application, such drugs would appear to be unapproved new drugs subject to FDA enforcement action.

Posted by: George | Oct 23, 2010 4:40:52 PM

Suspicious indeed, S.C., and maybe Arizona, thinking like the law and order people here (the end justifies the means) somehow smuggled in the drug by bypassing the FDA.

Posted by: George | Oct 23, 2010 5:09:20 PM

George, the point is that Baze governs when stays can be granted as a result of challenges to the lethal injection procedure. Thus, you have to point to language in Baze that authorizes this fishing expedition.

Posted by: federalist | Oct 23, 2010 6:36:14 PM

federalist --

You're right about the point of Baze, but I think we should keep our eye on the big picture.

This is what's really going on: It's junk litigation, filed as usual as the clock runs down, aimed at defeating the death penalty through a slow judicial bleed since it cannot be defeated at the ballot box. There's not a whole lot more to it than that.

Posted by: Bill Otis | Oct 23, 2010 6:57:16 PM

Bill, you blame the attorneys--I blame the judges. And I think federal courts are irresponsible on this issue, and it is time they simply lost jurisdiction over death sentences.

Posted by: federalist | Oct 23, 2010 10:01:52 PM

"The state, in a brief filed Friday, declined to identify the source of the drug, citing state confidentiality laws intended to shield those involved in executions from harassment by death penalty opponents."

What happened to that NPR style of free speech the conservatives so cherish? You can't really trust that liberal NY Times, right, Mr. Bill? Here is a better more detailed story in part.

Motion may force Arizona to reveal source of execution drugs

"It's possible the drugs may have been obtained from a foreign source," said Dale Baich of the Federal Public Defender's Office. "A message was left with our office stating that a person heard an employee of a local customs broker disclose that the company imported the drugs that will be used for Landrigan's execution."

The owner of that company told The Republic he knew nothing about it and that all of his business dealings were confidential.

"We don't do much with the FDA," he said, "It's a nightmare."

Public records requests about that company made to the Department of Corrections and the Arizona Department of Administration, which would pay for the drug, were met with refusals to release information, citing confidentiality under an Arizona law concerning the identity of executioners.

The topic of execution was never mentioned in either of the newspaper's requests.

Arizona Revised Statute 13-757 says, "The identity of executioners and other persons who participate or perform ancillary functions in an execution and any information contained in records that would identify those persons is confidential and is not subject to disclosure."

Posted by: George | Oct 23, 2010 11:13:03 PM

George __

Do you dispute that the defendant's factual guilt of aggravated murder has been established?

Do you dispute that the sentence of death is legal and that it has been reviewed and affirmed on appeal?

Do you dispute that the method of execution has been approved by the SCOTUS in Baze?

Then the rest of it is a gussied-up diversion.

Do you have any idea how a fuss over the source of the injection chemicals sounds to an ordinary, fair-minded citizen? Hint: It sounds like what it is, to wit, yet another last minute dodge for a guy who earned his fate years and years ago.

Posted by: Bill Otis | Oct 24, 2010 10:23:20 AM

@George
Perhaps we are less sympathetic to inmates claiming their means of execution is cruel no matter how humane it is made, maybe we're tired of 'brief' stays of execution to resolve these matters lasting up to five years and maybe we're incredulous at appeals courts taking great pains to drag out these court battles as long as possible(Kentucky, Arkansas, California, Delaware, North Carolina etc).

Posted by: MikeinCT | Oct 24, 2010 1:48:37 PM

MikeinCT, if you are tired of it, then get the funding for competent defense and lobby for laws that assure there are no wrongful convictions. Wouldn't that inspire better faith in the DP and be more productive than condoning unlawful government acts?

DP proponents often tout the public surveys in support of the death penalty because most everyone, even those against the death penalty, can think of someone who deserves it. But the survey questions do not ask the right question. A single question might better determine where people really stand not only in support of the DP, but would also measure their faith in the system:

"Do you think everyone on death row in the United States should be executed tomorrow?"

Since everyone on death row presumably got a fair trial, the question would inspire people to ask themselves: a) Does everyone on death row deserve to be there? b) Do we respect the appeals process or not? c) How much faith do we really have in death penalty prosecutions?

What do you think the results of that public opinion poll would be? Would the ratio be the same as "Do you support the death penalty?"

Posted by: George | Oct 24, 2010 3:39:36 PM

George --

How about this for a question: "Do you think everyone on death row in the United States should be executed tomorrow, providing that no realistic person doubts their factual guilt?"

Wanna bet what the answer would be to that?

BTW, a goodly majority of the public ALREADY BELIEVES that an innocent person has been executed in the past five years (and thus a fortiori that executing an innocent is possible under the present system), but an even bigger majority still favors the DP.

Posted by: Bill Otis | Oct 24, 2010 5:51:04 PM

"no realistic person"

That's a funny (loaded question) and a not so subtle insult to everyone that works for the Innocence Project throughout the country.

Here's an equally loaded question:

"Are prosecutors and attorney generals that commit crimes to kill someone by execution realistic persons?"

Posted by: George | Oct 24, 2010 7:32:28 PM

George --

"Are prosecutors and attorney generals that commit crimes to kill someone by execution realistic persons?"

No.

There's the answer to your question. Time to reciprocate by answering mine.

Posted by: Bill Otis | Oct 24, 2010 9:46:03 PM

So if the drugs were illegally imported, you think the culprit should be prosecuted?

To answer your question... it's impossible.

What is meant by a "realistic person"?

Is a realistic person a select jury of one's peers that is death penalty eligible?

Is a realistic person one who did not support Obamacare and does not listen to NPR but instead is devoted to FoxNews?

Probably a better phrasing would be this: "Do you think everyone on death row in the United States should be executed tomorrow, providing that no reasonable person doubts their factual guilt?"

Reasonable has an accepted legal standard whereas a "realistic person" does not. Of course, you had to avoid the word reasonable in your question because reasonable people do sometimes doubt guilt, like the Innocence Project. You hoped to duck around theat with "realistic person," lol.

You cited Caryl Chessman in another thread and a lot of people thought him most likely innocent, and even some of those who thought he might be guilty thought he didn't get a fair trial, so another question would be, "Do you think everyone on death row in the United States should be executed tomorrow even if they didn't get a fair trial?"

But then all this, and your question too, is implicit in my proposed simple, unbiased and unloaded question: "Do you think everyone on death row in the United States should be executed tomorrow?"

Yes, people support the DP but to what degree do they support it and under what circumstances?

Posted by: George | Oct 25, 2010 12:54:26 AM

@George
First, this has nothing to do with competent defense attorneys or wrongful conviction. That being said, yes I would support measures to fund better court and appellate attorneys both as a matter of fairness and the very real prospect that it would shorten the appeals process.
As for your question "does everyone on death row deserve to be there", the same could be asked of those doing LWOP. The answer to both is not all of them. So if one is a condemnation of capital punishment, isn't the other a condemnation of the only reasonable alternative sentence?
As for "should they all be executed tomorrow", the answer from many if not most is 'not yet'. The appeals process isn't over.

Posted by: MikeinCT | Oct 25, 2010 2:05:11 AM

MikeinCT, thanks for the direct and straightforward comment.

First, how do we know the attorney in this case does not believe it possible the defendant is innocent? Maybe arguing factual innocence without enough supporting evidence would be frivolous and anger the court? I'm not saying there is a potential factual innocence claim but only suggest that some DP attorneys might have to argue the technicalities of the DP because arguing factual innocence without proof would be futile, like many were before DNA testing. Indeed, the fight even for a probably guilty death row inmate could also be for the benefit the inmate in the cell next door who could be innocent. So maybe the motives vary.

Second, yes, "the other [is] a condemnation of the only reasonable alternative sentence" when the person is innocent, and that is because the government has not done all it can to implement the reforms the Innocence Project suggests to ensure trust in the system. Too often finality means, oh well, we cheated or made mistakes that too often get the innocent convicted, tough luck.

And doesn't the "not yet" answer indicate some respect for the appeals process? It is possible the "executed tomorrow" does make it a bit of a loaded question. Maybe this:

""Do you think everyone on death row in the United States, who had the benefit on one appeal to a higher court, should be executed tomorrow?"

Upon review, polls are amazing. A Gallup poll found 49% think the DP is not imposed enough and 57% think it is imposed fairly, while 57% think 1-5% of those executed in the last 5 years were innocent. On the other hand, maybe this explains why most people favor LWOP over the DP (49% over 48%)

How is is possible to argue with that kind of cognitive dissonance?

Posted by: George | Oct 25, 2010 3:32:22 PM

George --

The idea that death row is chock full of innocent people is just absurd, as you surely know.

Let me ask a really simple question: Do you think the law is justified in executing anyone, ever?

Posted by: Bill Otis | Oct 25, 2010 6:21:17 PM

Mr. Bill, no one else, wrote: "The idea that death row is chock full of innocent people...."

Typical.

Posted by: George | Oct 25, 2010 11:58:02 PM

George --

I'll repeat the question you continue to dodge.

Do you think the law is justified in executing anyone, ever?

Posted by: Bill Otis | Oct 26, 2010 8:06:29 AM

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