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February 25, 2014

"Compound Sentence: States keep mum on where lethal injection drugs are made"

The title of this post is the headline of this article in the March 2014 issue of the ABA Journal.  Here are excerpts:

Tony Rothert, legal director of the ACLU-Missouri ... says the group is troubled by the secrecy surrounding compounded drugs [to be used in executions].  “Our concern here is about transparency and the government not hiding what it’s doing, especially when it comes to compounded drugs,” he says.  “There are serious questions about whether using compounded drugs is going to be cruel and unusual punishment.”

Hours before [convicted serial killer Joseph Paul] Franklin’s Nov. 21 execution, U.S. District Judge Nanette Laughrey in Jefferson City ordered a stay, ruling that the state’s protocol “presents a substantial risk of inflicting unnecessary pain.”  The 8th U.S. Circuit Court of Appeals at St. Louis vacated that order, and the Supreme Court refused to reinstate it. Other prisoners in Missouri, meanwhile, are continuing to challenge the state’s lethal injection methods.

The same issues are playing out throughout the country.  Six states — Georgia, Missouri, Ohio, Pennsylvania, South Dakota and Texas — have either used pentobarbital from a compounding pharmacy or announced plans to do so, according to the Washington, D.C.-based Death Penalty Information Center.  Of those, Missouri and South Dakota have carried out executions with compounded drugs.  Colorado also made inquiries about compounded drugs, but executions in that state are on hold as long as the current governor remains in office.

Other states have revised their protocols and are no longer using pentobarbital.  Florida incorporated the drug midazolam into its lethal injection cocktail in an execution carried out in October, and Ohio has said it plans to do the same.

At the same time, state officials often refuse to provide information about lethal injections.  In Georgia, where 95 prisoners sit on death row, lawmakers recently passed the Lethal Injection Secrecy Act, which makes the identities of compounding pharmacies a state secret.  Arkansas, South Dakota and Tennessee also recently passed bills aimed at prohibiting disclosure of execution procedures and the identity of people as well as companies involved in executions.

Those changes to the lethal injection protocols, combined with new confidentiality laws, have spurred a wave of litigation, with defendants and their lawyers arguing that the new methods of execution could result in a painful death.  “Any death penalty lawyer worth their salt would be challenging the method of execution in their particular state,” says Fordham University law professor Deborah Denno, who studies capital punishment.

But groups that support the death penalty say many of these challenges are meritless.  “If you have pentobarbital, and if the supply you have has been tested and found to be in the right concentration, the challenges being raised should be dismissed,” says Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, based in Sacramento, Calif.  “There isn’t a good argument that the use of that method is in any way cruel.”

Scheidegger adds that state officials have good reason to keep the names of compounding centers a secret.  “It is regrettably necessary to provide confidentiality for the sources, because of a conspiracy to try to choke off the supply by putting pressure on the suppliers,” he says. “Whatever it takes to defeat that conspiracy needs to be done.”

February 25, 2014 at 11:48 AM | Permalink

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| "Arkansas, South Dakota and Tennessee also recently passed bills aimed at prohibiting disclosure of execution procedures and the identity of people as well as companies involved in executions."|

--- The friends of murderers are suspected of targeting innocent people?

Posted by: Adamakis | Feb 25, 2014 1:37:56 PM

"conspiracy to try to choke off the supply by putting pressure on the suppliers"

The word "conspiracy" is interesting. If "pressure" is put on the governor to not commute a sentence, is there a "conspiracy" to do so? I guess this is not surprising though. It's like the traditional hooded executioner.

If the source of the drugs are tested by an appropriate testing agent, yes, the drugs might be deemed safe though when testing is done in various cases, there is a right of oversight by the defense side. For instance, if drugs are tested by a testing agency in a criminal case, the tester can be cross-examined and its bona fides double-checked. It is appropriate here too.

Posted by: Joe | Feb 25, 2014 2:47:01 PM

| ®What is CONSPIRACY?
In criminal law. A combination or confederacy between two or more persons formed for the purpose of committing, by their joint efforts, some unlawful or criminal act, or some act which is innocent in itself, but becomes unlawful when done by the concerted action of the conspirators, or for the purpose of using criminal or unlawful means to the commission of an act not in itself unlawful.|

thelawdictionary.org/conspiracy/#ixzz2uMja0oNO {Black's}

#######################
### The Death Penalty Information provides the precise location and photo to activists
of the "London-based Dream Pharma, which provided lethal injection drugs to Arizona, California, and Georgia." (@ www.deathpenaltyinfo.org/picture-dreampharma)

### The ACLU of Northern California distributes a "Lethal injection scramble map" including drug suppliers' name, location, and "information on price and quantity of drugs."

### "Also testifying was Jacob Luby, an attorney with the Death Penalty Litigation Center. Luby raised concerns that the drug would not be stored at the proper temperature in transport:"

### (Reuters) - "The American Civil Liberties Union sued Missouri prison officials on Wednesday seeking to force the state to divulge the compounding pharmacies that supply its lethal execution drugs and identities of other members of its death row execution team."

Posted by: Adamakis | Feb 25, 2014 3:47:11 PM

To regulate or not to regulate--that is the question.

Mr. Scheidigger is a known member of a conspiracy to ensure the supply of lethal injection drugs is free-flowing and forever. See, Crime & Consequences Blog available at: http://www.crimeandconsequences.com/crimblog/

"Scheidegger adds that state officials have good reason to keep the names of compounding centers a secret. 'It is regrettably necessary to provide confidentiality for the sources, because of a conspiracy to try to choke off the supply by putting pressure on the suppliers,' he says. 'Whatever it takes to defeat that conspiracy needs to be done."

Scheidegger says its ok because "of course this is not a prescription, and the murderer is not a patient." "The executive has always decided matter of detail."

Scheidegger's methodology is well known -- admit nothing, deny everything, and make counter-allegations.

His perspective does not inform the issue. Instead, Scheidegger takes the NSA approach -- secrecy shall reign because they can't stand the heat.

Posted by: ? | Feb 25, 2014 9:25:58 PM

? --

"To regulate or not to regulate--that is the question."

No, that is not the question.

The question is whether abolitionists will be able to de facto end a democratically-established punishment, the death penalty, with endless, speculative litigation about such weighty things as the name of the pharmacy.

Why not be honest about it, Mr. ?. Your problem is that grisly killers are executed AT ALL, not that one batch or another of chemicals is used.

Is that not correct?

Posted by: Bill Otis | Feb 25, 2014 10:13:59 PM

I'd just avoid the term "conspiracy" in this context on both sides, but there is a desire to use emotional-laden terms instead of more nuanced legal analysis in various cases. This continues to be a bit strange to me on a blog that if anything would seem more likely to attract those who like erudite legalistic analysis on such a specialized subject as "sentencing law and policy."

People are "honest" -- they have a basic position about various things but also see lesser concerns, including wanting to have appropriate oversight of the means used to kill people. Use of secret places to test drugs in a felony case would not be allowed, so full disclosure to the appropriate parties (the media is making a 1A case for disclosure here) of drugs used to execute are put to a test.

Most grisly killers aren't executed. This is what the democratically established system in place has shown a desire for. As to those that are executed or put in prison or whatever, there are rules that need to be followed, even if the people at large don't care much about them. People who are against the death penalty are part of the people here at any rate and they can make their opinions known w/o it being a "conspiracy."

Posted by: Joe | Feb 26, 2014 10:43:34 AM

Joe --

Please cite the statute or case holding that a condemned inmate has the right to know the name of the pharmacy from which the lethal injection drug(s) is coming.

What I'm asking for is not an argument. It's a statute or case citation for that very specific proposition.

Posted by: Bill Otis | Feb 26, 2014 1:19:45 PM

One other question, Joe.

Do you disagree that the principal purpose of this source-of-drug litigation is simply to indefinitely delay, and thus effective repeal without democratic processes, the death penalty?

Posted by: Bill Otis | Feb 26, 2014 1:22:52 PM

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