Documents obtained by the American Civil Liberties Union Of Northern California (ACLU) point to numerous serious concerns about the state’s proposed regulations for single-drug lethal injection in executions. They also point to issues with the legal staff, who write the regulations.
Thanks to the efforts of the worldwide anti-death penalty movement, states practicing the death penalty have faced a shortage of FDA-approved execution drugs because major drug manufacturers routinely refuse to supply them. However, instead of slowing the pace of executions, many states have reacted by acquiring illegal or questionable drug supplies or, in some cases, experimenting with executing prisoners with other drugs. This has led to ghastly consequences.
The more than 12,000 pages of emails and draft regulations released by the California Department of Correction and Rehabilitation (CDCR) reveal how the state planned to continue executing prisoners in light of the drug shortage, as well as the generally cavalier attitude toward lethal injection held by legal counsel for the department.
California’s state government understated the cost of procuring lethal injection drugs by over $100,000 per execution; flouted federal prohibitions on illegal supplies of lethal injection drugs; contemplated purchasing lethal injection drugs from dubious online marketplaces and veterinary pharmacies; and dismissed concerns brought by botched executions in other states like Florida, Oklahoma and Arizona.
In one email [PDF] from April 16, 2014 , CDCR Legal Affairs Division attorney Kelly McClease wrote to colleagues Stephanie Clauss and Benjamin Rice to discuss the various options and corresponding costs for purchasing execution drugs. McClease, one of the department’s attorneys overseeing the creation of new rules, urged the department to act quickly as this was “likely a one-time window to acquire this drug because of pharmaceutical/anti-death penalty activity.”
McClease noted extra portions of the drug would be needed for “three days of training immediately preceding an execution,” including training for executions in which the drug would be prepared in advance through mixing. But McClease suggested the state could save money and reduce the amount of drugs it needed to buy if it modified the rules to “expressly omit ‘mixing’ as a [training] requirement because the team is comprised of medical professionals.”
Later, McClease emailed Clauss and Rice to say CDCR had been contacted by a pharmacy offering to provide the state with execution drug pentobarbital from a manufacturer. However, the drug manufacturer wanted the pharmacy to sign an agreement “stating that the pentobarbital would not be resold to any penal system that had the death penalty.”
To get around the drug manufacturer, the pharmacy—which is a compound pharmacy that mixes ingredients to produce new drugs—would supply CDCR with the drug, “if the state of CA will ensure the company’s confidentiality […] prior to signing any contract” and agreed to cover fees from federal agencies to inspect the facility, manufacture the drug and then test it.
Such “start up fees” amounted to half the total cost to procure the execution drugs. The unnamed pharmacy also offered to “purchase and/or compound any other barbiturate that CDCR desires,” such as thiopental (not made in the US) or Secobarbital (available in the US only as a pill), Hexobarbital and Amobarbital. These drugs have varying potency in relation to pentobarbital, meaning they would have to be administered differently in an execution, and come with varying prices as well.
Additionally, CDCR wrongly estimated the cost of procuring execution drugs to be around $4,193 per execution (which they calculated would require about 60 grams of pentobarbital, including training) in its proposed regulations. Instead, CDCR attorneys shared figures ranging from $2,200 to $2,500 per gram of execution drugs. At 60 grams per execution, this would mean the state could spend between $133,080 and $150,000 to kill a single person.
In March 2014, McClease shared an alarming point of view in an email to Clauss and Rice [PDF] under the subject line “explanation,” stating “CA is the only state that did everything properly via FDA and DEA for importation and acquisition. There were infirmities in all other states acquisition of drugs.”
CDCR was ordered by the FDA in 2012 to surrender an illegal imported cache of sodium thiopental—an order which CDCR flatly refused.
Despite this past run-in with the FDA, one month after McClease asserted the state “did everything properly,” a redacted source within the CDCR emailed her under the subject line: “BUY NEMBUTAL SODIUM IN THE UK,” and wrote, “We could do it again…” before copying and pasting a page from a website offering to sell Nembutal on the internet.
The website, nembutalpento.webs.com, is now “frozen,” but according to the email circulated by CDCR staff, it advertised itself as “top and legit nembutal suppliers. We ship world wide for very good prices and we attain (sic) to clients in 24 hours maximum. We do express delivery as well as overnight shipping. We serve our clients well so that they can purchase from us constantly.”
The website goes on to note “WE (sic) sell Nembutal sodium at very affordable prices which can permit any person of any class to be able to purchase. You can alos (sic) use this drug on animals for vertinary (sic) purposes. This drugs (sic) also serves as a sleeping tablet. We charge extra $32 for shipping and delivery.”
Other emails [PDF] sent by redacted sources to McClease from 2012 and 2013 indicate this was not the only time CDCR attorneys shared links to online pharmacies while considering where to procure execution drugs. One page, apparently copied from a zombie enthusiasts’ forum, offered buyers inexpensive supplies of pentobarbital without a prescription; another, from the website of a compound pharmacy from Michigan specializing in animal medicines that “TASTE GOOD with over 150 flavors to choose from,” offered pentobarbital with a veterinary prescription, in which case officials were considering buying drugs used on animals to execute prisoners on death row.
A message dated January 2014 [PDF], shows how CDCR staff attorneys charged with devising new lethal injection protocols reacted to news of botched executions in other states.
McClease replied to a message from CDCR staff counsel Philip Reiser about an incident in Ohio, in which a prisoner was heard loudly gasping for air while being put to death with an experimental cocktail of drugs. McClease argued witnesses saw the prisoner “snoring,” not gasping, and it was “very common with Midazolam and seen quite often in surgery.”
Calling concerns over the execution a “big hoopla” that was “beyond ridiculous… but not at all unexpected,” McClease contended the drugs were “very well known and there is plenty of information as to how they work/perform.”
A redacted source emailed Kelly McClease a copy of an article in June 2014 that was written by Ben Crair of the New Republic. The subject line read, “Lethal Injection Photos Angel Diaz’s Botched Execution In Florida.”
In 2006, Diaz’s executioners had improperly inserted IV catheters into both of his arms, piercing his veins completely and injecting a three-drug execution cocktail into the tissue instead. As a result, the 10-15 minute scheduled execution ended up taking over a half hour and executioners had to administer two full doses of the drugs to kill him. The article included photos of massive chemical burns on his arms that caused the skin to slough off, and noted evidence of “venous jugular distention” in his neck, which could mean he was struggling to breathe. As Crair wrote, “It was one of the worst botches since states began using lethal injection in the 1980s.”
Above the article, the reaction shared by the redacted source was simple yet spoke to where CDCR officials are placing their concerns with regards to executions: “I do not know where or how they got these pictures!”
Last November, CDCR published its proposed regulations for lethal injection [PDF] and opened a public comment period. Following their release, the ACLU submitted a public records request for emails and other documents illustrating how those regulations were developed so the public would have adequate information before weighing in on the proposal. CDCR refused to comply, and the ACLU sued the department to force disclosure of the documents.
CDCR responded by extending the public comment period four times, most recently until July 11, 2016, to give itself more time to fight the release of the records in court. Ultimately, the department failed, and a court ordered CDCR to turn over more than 800 documents last week.