Tuesday, February 15, 2011

State of Barbarism

If the State of California had its way, executions would still be carried out in the gas chamber.  The State opposed a lawsuit brought in the early 1990s to establish that such a method was cruel and unusual.  After extremely contentious proceedings proved that inmates put to death by gas suffered "intense, visceral pain, primarily as a result of lack of oxygen to the cells," an experience equivalent to a major heart attack, or to being held under water, the California legislature provided lethal injection as an alternative.

Having established lethal injection as the method for execution, the State would have preferred to conduct as much of the process as possible out of the view of witnesses.  After more lawsuits, brought by the ACLU and others, the federal courts ruled that the public had a right to view virtually the entire execution process.

It was clear why the State fought to keep executions secretive.  More recent litigation has revealed a chaotic and haphazard process being carried out by untrained personnel in dark, crowded conditions with lax oversight over the administration of lethal drugs.  Moreover, it has been shown that, contrary to common belief, lethal injection could cause excruciating pain that is masked by the paralytic effect of one of the drugs -- particularly if incorrectly implemented.

California uses a combination of three drugs that was concocted in the 1970s by a state medical examiner from Oklahoma without scientific testing.  Sodium thiopental, the first of three drugs, is a barbiturate that is supposed to render the inmate unconscious.  A second drug is designed to cause muscle paralysis and respiratory arrest.  The third drug is supposed to stop the heart.  There are many problems with this protocol, the most serious of which is that by using a paralytic agent, there is no way to tell if the barbiturate is working effectively.  In other words, if the inmate is paralyzed it can't be discerned whether he (or she) is truly unconscious or is simply unable to scream out in pain.

Now adding to this risk is the potential use of a barbiturate that has not been tested by any authority to ensure it will work properly.  As has been widely reported, there is a nationwide shortage of sodium thiopental, California's supply expired, and the U.S. manufacturer, Hospira, has decided to stop producing the drug.  This led to a mad scramble by the State to obtain the drug from another source, which they ultimately found in Great Britain.

The FDA contends that it is not required to determine the "identity, safety, effectiveness, surety or any other characteristics" of the British shipment.  It maintains that its role is to review the drug only for medical use and to defer to prison officials when the drug is used for lethal injection.  Of course, the State assures us that there is nothing to worry about.  According to a prison spokesperson, "All our efforts to acquire the drug, and any drug for lethal injection, were done in accordance with state and federal law."  This has led to a federal suit against the FDA, brought by six death row inmates, who claim that the agency’s decision to allow one execution drug across U.S. borders without FDA approval is ”manifestly contrary to law and amount[s] to an abdication of the obligations imposed” by the Food, Drug and Cosmetic Act of 1938.

We have now learned that the drugs were obtained from Dream Pharma, a small pharmaceutical shop in West London that also houses a driving school.  Records obtained from the FDA by the ACLU-NC reveal that Dream Pharma is not FDA-approved and that the UK broker did not know if the drugs met U.S. standards. While the drug that had been made in the U.S. came with liquid for mixing, according to the UK distributor, the British product is "freeze-dried powder" and dilutents are not provided.  While CDCR, California's correctional agency, sent a sample of the UK-made drugs out for testing that should have been completed by October, it has yet to disclose the results.  Once again, we are supposed to take the State's assurances on faith. 

My good friend Natasha Minkser, Death Penalty Policy Director at the ACLU-NC said it perfectly:

The most extreme act of government merits the highest degree of transparency and scrupulous adherence to the law. The people of California deserve better than an 'add water and kill' policy made up behind closed doors.  We call on the Governor, the Attorney General and the department of corrections to stop hiding the truth and to disclose to the public what's really going on here.

[Related posts:  Unevolved and Indecent, Lethal Lifesavers; Evolving Justice, Hide and Seek, Drug Problem, Banality of Evil]

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