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California Chief Justice Says No Executions Likely for Three Years

The Chief Justice of California's Supreme Court, Tani Cantil-Sakauye, said recently that she does not expect executions in California to resume for at least three years because of problems with the lethal injection process. California has already not carried out an execution in seven years. Justice Cantil-Sakauye said major structural changes to the state's death penalty are unlikely, and that a proposal by the former Chief Justice to speed death penalty appeals is "dead." That proposal would have had state appellate courts, rather than the California Supreme Court, handle appeals in capital cases.  Such a change would require a constitutional amendment and greater funding for appellate courts. Those proposals have failed in the past. Californians narrowly defeated (52-48%) a ballot initiative to repeal the death penalty and put some of the money saved into solving cold cases. The state is spending an estimated $180 million per year on the death penalty.


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LETHAL INJECTIONS: Pennsylvania Planning Execution with Drugs from Questionable Source

UPDATE: Execution stayed by federal court on Nov. 8 to allow time for appeal.  Pennsylvania is planning to use drugs in an upcoming execution that are not regulated by the federal Food and Drug Administration but rather are made to order by a compounding pharmacy. A compounding pharmacy has been implicated in the deadly meningitis outbreak in the U.S. caused by contaminated drugs. In Missouri, the Pharmacy Board tested claimed drug dosages from compounding pharmacies from 2006 to 2009 and found that the pharmacies failed 1 out 5 times, with dosages ranging from zero to many times of what was prescribed. Compounding pharmacies in Texas failed to deliver drugs of the proper dosage in one-third of tests done there. This is crucial because an improper dosage could subject the inmate to excruciating pain. The state fought hard to keep the source of its drugs out of court, snubbing two federal court orders to divulge the information, finally complying at the last minute after the threat of sanctions.  A federal class action suit has been filed challenging Pennsylvania's execution protocol. The suit could affect the execution of Hubert Michael, Jr., scheduled for November 8. 


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LETHAL INJECTION: Manufacturer of Proposed Execution Drug Blocks Its Use

The main supplier to the U.S. of a drug proposed for lethal injections has announced it will not allow the drug to be sold for executions. Fresenius Kabi USA, a German-based company with offices in Illinois, issued a statement forbidding the sale of propofol to correctional institutions for death penalty use. Earlier in 2012, Missouri announced it intended to switch to propofol as the sole drug in its lethal injection protocol, becoming the first state to do so. Fresenius Kabi officials reacted with a statement: “Fresenius Kabi objects to the use of its products in any manner that is not in full accordance with the medical indications for which they have been approved by health authorities. Consequently, the company does not accept orders for propofol from any departments of correction in the United States. Nor will it do so." Missouri, like most states with the death penalty, had been using sodium thiopental as the first drug in a three-drug protocol. Supplies of the drug expired or ran out, forcing states to seek alternatives. Some states replaced sodium thiopental with pentobarbital, but supplies of that drug have also dwindled after its manufacturer announced it will restrict the drug's sale for similar reasons. Read full statement from Fresenius Kabi.


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United Kingdom Acts to Ban Export of Lethal Injection Drug

The United Kingdom has introduced restictions on the exportation of propofol after officials in Missouri announced they would begin using the anesthetic in executions. Exports of sodium thiopental, another anesthetic previously used in executions, were restricted after several states obtained that drug from DreamPharma, a drug company run out of the back of a driving school in London. Vince Cable, the U.K. Business Secretary, said, "This country opposes the death penalty. We are clear that the state should never be complicit in judiciary executions through the use of British drugs in lethal injections." The ban will not prevent export of the drug for medical purposes.

Missouri is the first state to announce its intention to use propofol in executions. All executions in 2012 have used the anesthetic pentobarbital. Lundbeck, Inc., the Danish producer of pentobarbital, announced restrictions on its distribution to avoid its use in lethal injections. Recently, manufacturing rights were transferred to a U.S. company, Akorn, Inc., but restrictions on pentobarbital's use were to stay in place.  This week, Texas announced that it will begin using pentobarbital in a new one-drug protocol for executions.  Four other states have already used a one-drug procedure.  Oklahoma, which had previously stated that it had only enough pentobarbital for one more execution, announced on July 11 that it had acquired 20 additional doses from an unnamed source.


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Arkansas Supreme Court Holds Lethal Injection Law Unconstitutional

Arkansas state sealOn June 22, the Arkansas Supreme Court struck down the state’s lethal injection law as unconstitutional because it delegated too much authority to the Department of Corrections. In a 5-2 decision, the court sided with 10 death row inmates who argued that, under Arkansas's constitution, only the Legislature can set execution policy, and that legislators violated the state's separation of powers doctrine when it voted to give that authority to the prison system in the Method of Execution Act of 2009. The ruling does not invalidate Arkansas’s death penalty but does leave the state without a lawful way to carry out executions until a new law is passed.  Associate Justice Jim Gunter, writing for the majority, said that the law governing executions failed to include reasonable guidelines for executive branch agencies to follow when deciding on an execution protocol: "The statute provides no guidance and no general policy with regard to the procedures for the (Arkansas Department of Corrections) to implement lethal injections.” There are currently 40 prisoners on Arkansas’s death row. The last execution carried out in the state was in 2005.


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Court Requires Greater Public Access for Viewing Executions

On June 8, the U.S. Court of Appeals for the Ninth Circuit ruled that witnesses should have full viewing-access to executions carried out in Idaho, siding with the Associated Press and other media outlets. Seventeen news organizations had argued that the state’s protocol was unconstitutionally restrictive because it prevented witnesses, including reporters acting as representatives of the public, from viewing executions until after catheters had been inserted into the veins of death row inmates. The court stated, "Nearly a decade ago, we held in the clearest possible terms that ‘the public enjoys a First Amendment right to view executions from the moment the condemned is escorted into the execution chamber.’ . . . The State of Idaho has had ample opportunity for the past decade to adopt an execution procedure that reflects this settled law." The ruling will immediately affect the execution of Richard Leavitt, who is facing lethal injection on June 12. Jeff Ray, a spokesperson for Idaho’s Department of Corrections said, "We, of course, respect the court's decision. We will take the necessary measures to assure that the execution continues as scheduled.”


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LETHAL INJECTION: Missouri Intends to Use Propofol in One-Drug Lethal Injection

The Missouri Department of Corrections has announced that it is switching from a three-drug lethal injection protocol to a single-drug method, using Propofol. Missouri would be the first state to use Propofol (Diprivan) as an execution drug.The drug is manufactured by AstraZeneca. At least one medical expert has questioned whether the new execution drug is appropriate. Missouri’s written protocol does not require a physician to be a part of the execution team. Dr. Jonathan Groner, an Ohio State University surgeon who has studied lethal injection extensively, said that improper administration of the drug could cause pain at the injection site. Dr. Groner said high doses of Propofol will cause respiratory arrest, but the dosage must be accurate and the process must move swiftly because the drug wears off in just a few minutes. According to Dr. Groner, "If they start breathing before the heart stops, they might not die.” It is not clear when Propofol would first be used in an execution.  Missouri has scheduled an execution for August 3, but some appeals remain.  The state has carried out only two executions in the last seven years.


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EDITORIALS: "Shortage of Key Drugs May Suspend Death Penalty in Missouri"

The St. Louis Post-Dispatch urged Missouri to end its death penalty as the system has ground to a halt because of controversies involving its method of execution. On May 8, a federal appeals court declined to rule on a challenge to the state’s lethal injection protocol because the Department of Corrections could no longer obtain one of the three drugs specified in the protocol. The U.S. Court of Appeals for the Eighth Circuit said, “The DOC is unable to carry out the challenged protocol as written, and it appears unlikely it ever will.” A new protocol will be needed.  The drug shortage will almost surely halt executions in the state. The editorial called this recent turn of events “an ideal time for Missouri to follow the lead of 17 other states and forego capital punishment. It's expensive and serves no deterrent effect. Its administration is always arbitrary and capricious. Missouri so botched its procedures in the mid-2000s that a federal judge suspended executions until the state fixed the problems. Only two men have been executed since 2005.” Read full editorial below.


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LETHAL INJECTION: Execution Process Often Masked Behind a Veil of Secrecy

Controversies surrounding the lethal drugs used in U.S. executions continue to arise in many states.  Documents obtained by the Associated Press reveal the secretive process in which the Delaware Department of Corrections obtained the drugs necessary for the its lethal injection process. Delaware officials solicited the help of the state’s Economic Development Director, Alan Levin, in obtaining lethal injection drugs after its previous supply expired in 2005. Levin, the former head of the Happy Harry’s drugstore chain, contacted the CEO of Cardinal Health Inc., a supplier of pentobarbital. "I was happy to help facilitate it," said Levin, explaining that Happy Harry's, which he sold in 2006 to Walgreen Co., had done business with Cardinal for a decade or more.  "I understand the judicial system," said Levin, a former prosecutor who added that he believes in the death penalty.  DOC Commissioner Carl Danberg wrote in an e-mail to key lieutenants, “This is NOT for discussion or distribution to anyone, including your own staff until we get a chance to discuss… Emphasize that I do not want this discussed yet. Certainly not until the drugs are on hand. I am not even telling the AG yet.” The batch of drugs was delivered last June and was used in the lethal injection of Shannon Johnson, who was executed on April 20.


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Federal Court Overturns FDA's Approval of Foreign Shipments of Lethal Injection Drugs

Judge Richard LeonOn March 27, a federal District Court held that foreign-manufactured sodium thiopental was improperly approved by the Food and Drug Administration for use in executions.  Judge Richard Leon (pictured) of the District Court of the District of Columbia ordered any correctional departments in possession of the drug to return it to the FDA. The ruling granted summary judgment in favor of a lawsuit filed by death row inmates in Arizona, California, and Tennessee against the FDA. Those states, along with several others, had obtained sodium thiopental, an anesthetic used in lethal injections, from foreign sources after the sole U.S. manufacturer ceased production. The inmates contended "that unapproved foreign thiopental will fail to anesthetize plaintiffs properly during execution, causing conscious suffocation, pain, and cardiac arrest." According to Judge Leon, the foreign sodium thiopental "is a misbranded drug and an unapproved new drug" and "the FDA neither approved nor reviewed thiopental for safety and effectiveness." A January 2011 statement released by the FDA said "[r]eviewing substances imported or used for the purpose of state-authorized lethal injection clearly falls outside of FDA's explicit public health role." The judge disagreed, saying "the FDA appears to be simply wrapping itself in the flag of law enforcement discretion to justify its authority and masquerade an otherwise seemingly callous indifference to the health consequences of those imminently facing the executioner's needle."


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