The death chamber in Huntsville, Texas. (Photo by Joe Raedle/Newsmakers)
I’ve written before about how the death penalty degrades everything it touches, and in the words of Thomas Paine, “leads men to stretch, to misinterpret, and to misapply even the best of laws.” Doctors and other medical professionals complicit in the act of execution violate the Hippocratic oath to “do no harm.” Drug companies are unwillingly dragged into the business of killing, rather than healing. And now, a recent court ruling exposes how the the FDA, whose stated mission is to keep us safe from bad food and drugs, has abandoned its mandate in order to facilitate state executions.
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Secretly trafficking and then openly using unapproved drugs is now A-OK. That’s the message sent out yesterday by the Arizona Supreme Court, which allowed state officials to conceal their source for sodium thiopental (we know only that it’s NOT Hospira, the one FDA-approved supplier), and to continue with plans to execute Jeffrey Landrigan on October 26.
It is already well known that the death penalty compromises the integrity of the medical profession. Doctors, nurses, and EMTs are all bound by an oath to “do no harm” but all are involved, in a variety of ways, in the deliberate killing of prisoners. Now, it appears that our zeal for capital punishment is undermining the integrity of efforts to control and regulate powerful drugs.
Normally, if you acquired a controlled substance from a non-FDA approved source and announced your intention to use it for a non-FDA approved purpose, you would expect some sort of legal trouble. But, apparently, as long as that non-FDA approved purpose is putting someone to death, the normal rules don’t apply. Instead, you get to keep the source of your drug supply a secret, and you get to use those drugs however you want.
As for Jeffrey Landrigan, some DNA testing litigation in his case continues, and there is a clemency hearing on Friday. Landrigan’s case is sadly typical, in that his trial lawyer failed miserably to present mitigating evidence, and in that no federal appeals court has cared enough to hold a hearing on that issue. It is a bit unusual in that the judge who sentenced him to death now says she would not have done so, had she been aware of information that lawyer failed to present.
So while it appears the Arizona officials can kill Jeffrey Landrigan with a drug it got from God knows where, there is still a chance to convince them that they shouldn’t.
Arizona today admitted that it acquired the execution drug sodium thiopental from a non-FDA approved source, but continues to seek to execute Jeffrey Landrigan on October 26. The state refuses to say how they scored their new stash of the drug, citing a state law guaranteeing secrecy for executioners. The state also continues to claim that they got the drug lawfully, though this is difficult to reconcile with the admission that it was obtained from a source other than Hospira Inc., its only FDA-sanctioned provider.
There are plenty of other problems with Arizona’s plans to kill Jeffrey Landrigan, including that his trial attorney, who had never handled a death penalty case before, failed to introduce important mitigating evidence. Since the trial, much of that evidence has come to light, so much in fact that the judge who sentenced him to death now says that she would have “no choice” but to find that the mitigating circumstances were “sufficient to call for leniency”.
But no appeals court has ever held a hearing to examine Mr. Landrigan’s claim of inadequate counsel, and an execution has been scheduled anyway.
So, to sum up: Don’t Ask about the failures of Jeffrey Landrigan’s lawyer, and Don’t Tell anyone about the secret drug purchases of Arizona’s executioners.
At least for now. Litigation continues, as does an appeal for clemency.
As discussed previously here, the lethal injection drug sodium thiopental has been in short supply, and states have been running out. Its manufacturer, Hospira, won’t be able to make more until at least early next year. Yet some states have mysteriously been able to get new supplies. Oklahoma carried out an execution last night with drugs they may have obtained illegally from Arkansas. The sudden appearance of a new batch of sodium thiopental in California has raised questions about whether they may have acquired it from overseas, and, like California, Arizona is refusing to reveal where it got its recent supply of the drug.
All this so states can continue to kill prisoners.
Hospira’s plea for states to stop using their product in executions may have fallen on deaf ears, but there could legal ramifications if states are acquiring FDA regulated drugs illegally. According to the Daily Beast, citing the Oklahoma Department of Corrections, “Oklahoma did not consult a DEA registrant in obtaining the drug from Arkansas and filed no paperwork recording the transaction,” as is required by Federal law.
California’s new batch of sodium thiopental expires in 2014. Hospira’s spokesman Dainel Rosenberg to the Arizona Republic, “The expiration dates for lots last manufactured by Hospira are for 2011. Therefore, product with an expiration date of 2014 cannot be Hospira product.” Since Hospira is the only FDA approved manufacturer of this drug, what is it that California has?
Arizona is scheduled to execute Jeffrey Landrigan on October 26, but is also concealing where or how it acquired the sodium thiopental it plans to us, telling the Arizona paper only “The Department has lawfully obtained the necessary chemicals under its current written protocol ( . . . ) in sufficient quantity for an execution.”
We have a right to know how our states are carrying out this most extreme act of punishment. Treating the acquisition of lethal injection drugs as if it were some big national security secret is not only suspicious. It is an insult to the public in whose name these states are zealously trying to kill people.