California was forced to postpone the execution of convicted murderer Albert Greenwood Brown in September because the state had run out of sodium thiopental, part of the death drug cocktail used in lethal injections.
The last batch of the drug expired Oct. 1 and the manufacturer won't have more until 2011. So as of early October, all executions had been postponed until next year.
But on Oct. 6 the state Department of Corrections and Rehabilitation announced in a court filing that it had obtained 12 grams of sodium thiopental, also known as sodium pentothal, with an expiration date of 2014. That could mean some swifter executions.
But it also raises a critical legal question: where did the drug come from, and did the state violate federal or international laws obtaining it?
CDCR isn't talking. Terry Thornton, deputy press secretary, refused to identify the source of the newly acquired drug. But it clearly didn't come from the manufacturer Hospira. The company, the only U.S. manufacturer of sodium pentothol, says it has none available and is in no rush to sell it to the CDCR. In a statement released by Hospira, company spokesperson Daniel Rosenberg announced that "the drug is not indicated for capital punishment and Hospira does not support its use in this procedure."
Natasha Minsker, death penalty policy director for the ACLU of Northern California, said it would be tricky for the state to buy the drug from anyone else. "Hospira is the only approved manufacturer in the U.S.," she said.
But there's a hint of where California's supply might have come from. Arizona also recently obtained some of the death drug — Arizona Attorney General Terry Goddard told the Arizona Republic that it was delivered from an unidentified source in Britain.
But the British press has raised questions about the deal. No European country has the death penalty and both British and European Union laws bar exporting for profit materials used for executions.
Both the Arizona and California batches have the same expiration date.
Ty Alper, associate director of the Death Penalty Clinic at Boalt Hall School of Law, explained that to his knowledge, "California got [the sodium thiopental] from a foreign source," He raised questions about the possible risks of obtaining the drug from an unknown outfit.
"If the drug is not FDA approved, could it have contaminants in it? Could it perform differently?" Alper asked. "If that drug doesn't work right then, everybody knows the execution will be horribly painful and torturous."
So far, the U.S. Supreme Court hasn't bought that argument. Oct. 25 the court voted 5-4 to clear the way for Arizona to execute Jeffrey Landrigan, a convicted murderer. "There is no evidence in the record to suggest that the drug obtained from a foreign source is unsafe ... There was no showing that the drug was unlawfully obtained, nor was there an offer of proof to that effect," the unsigned opinion stated.
Landrigan was executed Oct 27.
However, we can't find any evidence that California obtained the drug legally. There are no FDA-approved importers, and federal law strictly limits the ability of anyone to bring powerful drugs directly into the country. Title 21 United States Code of the Controlled Substances Act, Section(b) states: "It shall be unlawful to import into the customs territory of the United States from any place outside thereof (but within the United States), or to import into the United States from any place outside thereof, any nonnarcotic controlled substance in Schedule III, IV, or V, unless such nonnarcotic controlled substance ... (1) imported for medical, scientific, or other legitimate uses"
Sodium pentothal is a Schedule III drug.