"Seeking Execution Drug, States Cut Legal Corners"

The title of this post is the headline of this effective new piece from the New York Times, which gets started this way:

A shortage of one of the three drugs used in most lethal injections has caused disarray as states pursue a desperate and sometimes furtive search that might run afoul of federal drug laws.  At the same time, it has given death-penalty opponents fresh arguments for suing to block executions.

Until recently, states that use the drug, the barbiturate sodium thiopental, got it from a domestic supplier, Hospira Inc.  But that company stopped manufacturing the drug in 2009 because of manufacturing problems, and announced earlier this year that it would stop selling the drug altogether.  International pressure on suppliers by groups opposed to the death penalty has further restricted access to the drug.  States had to find a new source, but importation of sodium thiopental is highly restricted under federal law.

Recently released documents emerging from lawsuits in many states reveal the intense communication among prison systems to help each other obtain sodium thiopental, and what amounts to a legally questionable swap club among prisons to ensure that each has the drug when it is needed for an execution.

In depositions from Arkansas officials, Wendy Kelley, a deputy director of the Department of Correction, said she obtained sodium thiopental from a company in England after hearing about it from corrections officers in Georgia.  Her state, she said, at various times had given the drug to Mississippi, Oklahoma and Tennessee free of charge, and obtained the drugs from Texas — traveling to Huntsville herself — and from Tennessee....

When Kentucky went searching for execution drugs earlier this year the state’s corrections commissioner, LaDonna H. Thompson, wrote in a memo that she had contacted departments in Georgia, Nebraska, South Dakota and Tennessee.  A Georgia official “referred me to a distributor in Georgia that he thought might have a supply,” and that she had gotten information on “an organization in India,” Kayem Pharmaceuticals.  (That company halted shipments to the United States last week under international pressure.)

Bradford A. Berenson, a Washington lawyer who on behalf of death row inmates has urged the Food and Drug Administration and the attorney general, Eric H. Holder Jr., to block the importation of unapproved execution drugs into the United States, said that the states had been “pretty heedless of the legal lines” regarding the purchase and importation of powerful drugs like sodium thiopental.  It was as if “because this was death-penalty related, it was somehow exempt from all the normal rules,” Mr. Berenson said.  “As a legal matter that was not true.”

States sometimes took remarkable measures to obtain the drugs, the documents suggest. Georgia prison officials were clearly growing antsy last summer as their supply of thiopental neared expiration and a shipment from England lay stalled for weeks in Memphis. Customs agents had detained the package pending inspection by the Food and Drug Administration.  By July 6, a corrections official sent a terse e-mail message to a colleague asking, “Any word?”

The response: “We got word but not the ‘good’ word.”  The shipment was still held up.  “I continue to track the package several times each day.”  So officials explored a new tactic: instead of going through the usual channels of ordering the drug through a Georgia health care company and a local pharmacy, might the British company simply send the drug directly to the department?

The owner of Dream Pharma, a wholesaler run out of the back room of a driving academy’s offices in London, replied “I am more than happy to assist.”  Matt Alavi, the owner, also warned that a certain carrier is “very stringent with US customs.”  A Georgia corrections official approved the deal — “Yes. Make it happen” — with instructions to seek a supply with long expiration dates, and the drugs were soon winging their way to the United States.

This approach might well have broken federal drug laws, said John T. Bentivoglio, a former associate deputy attorney general, in a February letter to Mr. Holder on behalf of a Georgia death row prisoner, Andrew Grant DeYoung.  The Drug Enforcement Administration seized Georgia’s drugs last month, and earlier this month Kentucky and Tennessee turned over theirs as well.  “I think it’s quite reasonable to expect a state criminal justice agency like departments of corrections to abide by federal law,” Mr. Bentivoglio said in an interview.