-- Scott Kernan, CDCR undersecretary, to deputy director of AZ Dept. of Corrections upon receiving 12 gms of sodium thiopental for Albert Brown's execution.
As has been widely reported, there is a nationwide shortage of sodium thiopental, one of the drugs used in the lethal injection "cocktail," which has caused a crisis for states determined to carry out executions. In late September, California officials rushed to execute Albert Brown before the October 1st expiration date on California's last dose of the drug. Executions had been stayed in California since 2006, while litigation over the myriad problems with the lethal injection protocol was proceeding. When it was disclosed that the motivation for abruptly seeking an execution date for Brown and short circuiting the lethal injection case was concern over the drug's expiration date, the federal courts halted the execution.
Hospira, the only U.S. company that manufactures sodium thiopental, made clear that they could not produce more of the drug until 2011, but California admitted subsequent to the cancellation of Brown's execution that they had obtained additional quantities that did not have a lapsed expiration date. This spurred the ACLU of Northern California to file a lawsuit to obtain records from the California Department of Corrections and Rehabilitation (CDCR) about its acquisition of the drug, and on December 8, they received many of the requested documents.
What the documents reveal is the unseemly portrayal of government officials acting like drug addicts in desperate need of a fix. Beginning in August 2010, as reported in the Washington Post, "California prison officials went on a frantic two-month search." They called almost 100 hospitals without success, and sought the drug from Texas authorities who refused to part with their ample stock. Then they "scoured the globe," even searching for a source in Pakistan.
State officials finally found a trading partner in Arizona, who agreed to give them 12 grams. An AP article summarized the deal that went down. An Arizona warden provided a California prison official 24 vials of sodium thiopental, and the agent then drove to southern California where he handed the vials to another prison official, who transported the drugs to San Quentin Prison, where the death chamber is located. By the time the drugs were obtained, however, the Brown execution had been called off. (The documents also show that California subsequently acquired 521 grams of the drug manufactured by Archimedes Pharma of Great Britain, although that shipment is currently being held on the East Coast pending clearance from the FDA).
Unfortunately, because several documents have been redacted we still don't know all the people or companies involved in this grotesque business. Another unanswered question is why the rush to execute Albert Brown. Brown is one of about a half-dozen men who have lost challenges to their death sentences in state and federal court and who, assuming an adverse outcome in the lethal injection litigation, will have run out of legal remedies, barring a grant of clemency or some other eleventh hour reprieve. It is difficult to understand why the state couldn't simply wait until the lethal injection case was fully resolved and a new batch of drugs was obtained through the U.S. manufacturer sometime in early 2011. A spokesperson for the prison stated that "we have always said we were actively seeking a new supply of sodium thiopental," but this response does not explain the frenzied worldwide search.
In a recent post, I discussed an important essay written by former Supreme Court Justice Stevens in the New York Review of Books, On the Death Sentence. Stevens explained that the death penalty persists largely because of political and cultural forces. The New York Times, in a recent editorial, agreed with Justice Stevens that these are "'woefully inadequate justifications" for the death penalty.
With regard to politics, the election in California of a slate of Democrats who personally oppose the death penalty shows what little resonance remains of the bumper sticker argument that being tough on crime requires being staunchly pro-death penalty. That leaves the cultural power demonstrated by America's appetite for violence and revenge. This phenomenon, however, has been tempered by the fact that, as outgoing Chief Justice Ronald George conceded, the death penalty in California is dysfunctional. As the death row population tops 700, while questions persist about race, innocence and fair application of the death penalty, and the reality about the enormous cost of resolving all of these cases in times of budgetary crisis becomes clear, the ambivalence about, if not downright opposition to, capital punishment in California is growing.
Whether it was in service to a cynical and misguided political calculation or an increasingly tenuous cultural imperative, what we are left with is the spectacle of California officials in a mad scramble to obtain lethal drugs from anywhere it can to ensure that an execution it hastily scheduled could go forward. How shameful. The state's addiction to state killing is nothing more than, as the Times put it, a "brutal anachronism." It is time to end it.
[Related posts: Evolving Justice, Hide and Seek, Drug Problem, Banality of Evil, Tough on Crime]