Mysteries of the death-drug scramble
The strange tale of how California prison officials pulled out all the stops to buy lethal-injection drugs
The California prison system last month released 1,000 pages of documents showing the desperate lengths state officials have gone to procure the death drugs for prisoners sentenced to die by lethal injection.
At one point, the California Department of Corrections and Rehabilitation looked at importing drugs from Pakistan. In October, prison officials sent agents on a secret midnight mission to Arizona to acquire sodium thiopental, one of the drugs used in executions, from that state’s supply.
In the end, the CDCR wound up buying an extraordinary quantity of the stuff from a supplier in London—potentially putting California in the disturbing position of serving as the death-drug dealer to the rest of the country.
The protocol for lethal injections in California, and 33 other states, calls for three drugs—sodium thiopental to put the condemned inmate in a coma, pancuronium bromide to paralyze the muscles and potassium chloride to stop the heart.
But sodium thiopental, also known as Sodium Pentothal, has been in short supply in this country, in part because the one company that currently makes it, Hospira, has production backlogs. There’s not a whole lot of need for the drug in modern medicine—it’s largely been replaced with other anesthetics—and Hospira has made it clear in repeated press statements that it doesn’t want its product used in executions.
So when the last batch of the stuff in the state’s hands expired in October, California had to put executions on hold while prison officials scrambled to find some more.
The whole process was cloaked in secrecy. Nobody at the CDCR would reveal where they were looking for the sodium thiopental, who would be procuring it or how the supply chain might work.
That is crucial, in a grisly way: If the anesthetic didn’t perform properly (that is, if the state got a bad batch from an unregulated supplier), a prisoner could go through unspeakable agony as the second batch of drugs made it impossible to breathe.
The San Francisco Bay Guardian filed a request in October under the California Public Records Act seeking details on the purchase attempts, but the CDCR stonewalled. The American Civil Liberties Union, also seeking the documents, filed a lawsuit, and a judge ordered the release of a large volume of material.
Those documents, now available at http://aclunc.org, are heavily redacted. But the documents contain some remarkable revelations. For starters, CDCR officials knew as far back as 2007, while the drug protocol was being developed, that there would be problems procuring the drug. The Drug Enforcement Administration will only allow a doctor to order the schedule III controlled substances. And the federal receiver overseeing the prison system wouldn’t allow any of the three doctors on staff at San Quentin State Prison to sign the order forms, although the documents didn’t say why.
In January 2007, the CDCR tried to recruit outside doctors to order the drugs, but physicians in California have traditionally declined to assist in executions. Indeed, the American Medical Association policy bars doctors from participating in capital punishment in any way, including “prescribing or administering tranquilizers.”
It wasn’t until May 2010 that the CDCR was able to find doctors willing to order the deadly drugs; the names of those physicians are not in the documents.
The timeline shows that in June 2010, the CDCR became aware that there was a shortage of sodium thiopental, but there was no public discussion of the situation. Plans to execute Albert Greenwood Brown, a convicted murderer set to die in September 2010, went forward.
But the courts weren’t rushing the execution—and the last batch of sodium thiopental in the CDCR’s possession expired October 1.
As the clock ticked down toward that expiration date, the documents show, CDCR officials—all the way up to Corrections Secretary Matthew Cate—were involved in an all-out scramble to get more of the drug.
At one point, a September 16 e-mail, from an official whose name is blacked out, notes that the CDCR had contacted between 80 and 100 hospitals to try to buy some sodium thiopental, but “none of them have a drop.”
The documents note that CDCR officials even suggested that there were supplies of sodium thiopental in Pakistan. An August 17 e-mail from John McAuliffe, a contract worker helping CDCR with executions, says the agency is trying to get federal government approval to import the drug.
One e-mail even suggests that an unnamed CDCR employee was in the area and could make a side trip to Pakistan to pick up the stuff.
There are serious issues with importing controlled substances into the United States, and the documents show efforts by the CDCR to get the DEA to approve imports. The Pakistan deal apparently went nowhere, but later e-mails show CDCR officials contacting a supplier in London. The name of the supplier is blacked out on all the documents, but the CDCR’s deputy press secretary, Terry Thornton, later confirmed that the manufacturer was Archimedes Pharma.
Immediately after the California order for 521 grams of sodium thiopental went through, Britain’s secretary of state for business, Vince Cable, issued an order barring any further exports of the drug for use in executions.
The United Kingdom does not allow the death penalty.
In the meantime, Scott Kernan, the CDCR’s undersecretary for operations, was trying to get enough of the death drug domestically to carry out at least one execution. A series of e-mails shows contacts between California and Arizona, which recently had imported its own supply—and there are indications that Gov. Arnold Schwarzenegger was willing to call his counterpart in Arizona to help consummate the deal.
“I’m sure either the secretary or even the governor could make a call,” a September 9 e-mail from Kernan to McAuliffe notes.
Then on September 29, Kernan sent an e-mail to Assistant Secretary Anthony Chaus discussing a “secret and important mission.” Kernan wanted Chaus to send a team to a state prison complex in Florence, Ariz., a desert town about 40 miles southeast of Phoenix, to pick up 12 grams of the death drug.
At midnight September 30, the warden in Florence gave the CDCR agents 24 vials, each containing half a gram of sodium thiopental. The agents drove it to Bakersfield, where another team picked up the vials and drove the rest of the way to San Quentin.
Kernan sent an e-mail on September 29 to an unnamed Arizona official, saying “You guys in Arizona are life savers” and offering to “by [sic] you a beer next time I get that way.”
But by then, a federal judge had delayed Brown’s execution until 2011.
Among the most startling revelation was the sheer quantity of sodium thiopental California eventually ordered from the firm in London. Even with training supplies and backup, it only takes between 6 and 12 grams of sodium thiopental to render a prisoner unconscious—meaning that the 521 grams that the CDCR purchased for $36,413 are enough to kill between 43 and 86 people. The expiration date on the chemical is 2014.
It’s highly unlikely, given the legal hurdles and time involved in even one execution, that California would schedule more than three over the next three years. What possible use could the state have for so much death drug?
Thornton, the CDCR’s press person, wouldn’t respond to questions about this, but Natasha Minsker, the director of the ACLU’s Death Penalty Project, said she’s concerned that California will try to become a supplier for other prison systems. “It certainly raises questions,” she told us.
There’s a lot missing from the documents. In many instances, the names of the officials who sent and received e-mails are redacted. And there are obvious pieces of the puzzle missing from the files the CDCR has released.
“There’s no e-mail from the DEA or the FDA,” Minsker said, “although CDCR was clearly contacting them. There’s nothing from the governor’s office, although it’s likely they were also involved.”
Overall, Minsker said, the documents “show how sneaky CDCR was trying to be about all of this.”
The ACLU filed another suit December 13 seeking the release of some of the redacted material, as well as records of the CDCR’s efforts between October and December.