The strange tale of how California prison officials pulled out all the stops to acquire a lethal injection chemical
The California prison system finally released some documents on its efforts to procure the chemicals it needs to execute prisoners, and the 1,000 pages show the desperate lengths state officials have gone to procure the death drugs.
At one point, the California Department of Corrections and Rehabilitation looked at importing drugs from Pakistan. In October, prison officials sent agents on a secret midnight mission to Arizona to acquire sodium thiopental, one of the drugs used in executions, from that state's supply.
In the end, CDCR wound up buying an extraordinary quantity of the stuff from a supplier in London — potentially putting California in the disturbing position of serving as the death-drug dealer to the rest of the country.
The protocol for lethal injections in California, and 33 other states, calls for three drugs — sodium thiopental to put the condemned inmate in a coma; pancurium bromide to paralyze the muscles; and potassium chloride to stop the heart.
But sodium thiopental, also known as Sodium Pentothal, has been in short supply in this country, in part because the one company that currently makes it, Hospira, has production backlogs. There's not a whole lot of need for the drug in modern medicine — it's largely been replaced with other anesthetics — and Hospira has made it clear in repeated press statements that it doesn't want its product used in executions.
So when the last batch of the stuff in the state's hands expired in October, California had to put executions on hold while prison officials scrambled to find some more.
The whole process was cloaked in secrecy. Nobody at CDCR would tell us where they were looking for the sodium thiopental, who would be procuring it, or how the supply chain might work. That, of course, is crucial, in a grisly way: If the anesthetic didn't perform properly (that is, if the state got a bad batch from an unregulated supplier), a prisoner could go through unspeakable agony as the second batch of drugs made it impossible to breathe.
The Guardian filed a request in October under the California Public Records Act seeking details on the purchase attempts, but CDCR stonewalled. The American Civil Liberties Union, also seeking the documents, filed a lawsuit, and a judge ordered the release of a large volume of material.
Those documents, now available at aclunc.org, is heavily redacted, and much of the material we expected to see is missing. But the documents contain some remarkable revelations.
For starters, there's an internal timeline going back to 2007 showing that CDCR officials knew back then, while the drug protocol was being developed, that there would be problems. The Drug Enforcement Administration will only allow a doctor to order the class III controlled substances. And the federal receiver overseeing the prison system wouldn't allow any of the three doctors on staff at San Quentin State Prison to sign the order forms, although the documents didn't say why.
In January 2007, CDCR tried to recruit outside doctors to order the drugs — but physicians in California have traditionally declined to assist in executions. Indeed, the American Medical Association policy bars doctors from participating in capital punishment in any way, including "prescribing or administering tranquilizers."
It wasn't until May 2010 that CDCR was able to find doctors willing to order the deadly drugs; the names of those physicians are not in the documents.
The timeline shows that in June 2010, CDCR became aware that there was a shortage of sodium thiopental, but there was no public discussion of the situation. Plans to execute Albert Greenwood Brown, a convicted murderer set to die in September 2010, went forward.
But the courts weren't rushing the execution — and the last batch of sodium thiopental in CDCR's possession expired Oct. 1.
As the clock ticked down toward that expiration date, the documents show, CDCR officials — all the way up to Corrections Secretary Matthew Cate — were involved in an all-out scramble to get more of the drug.
At one point, a Sept. 16 e-mail — from an official whose name is blacked out — notes that CDCR had contacted between 80 and 100 hospitals to try to buy some sodium thiopental, but "none of them have a drop."
The documents note that CDCR officials even suggested that there were supplies of sodium thiopental in Pakistan. An Aug. 17 e-mail from John McAuliffe, a contract worker helping CDCR with executions, says the agency is trying to get federal government approval to import the drug.
One e-mail even suggests that an unnamed CDCR employee was in the area and could make a side trip to Pakistan to pick up the stuff.
There are, of course, serious issues with importing controlled substances into the United States, and the documents show efforts by CDCR to get the DEA to approve imports. The Pakistan deal apparently went nowhere — but later e-mails show CDCR officials contacting a supplier in London. The name of the supplier is blacked out on all the documents, but CDCR's deputy press secretary, Terry Thornton, later confirmed that the manufacturer was Archimedes Pharma.
Immediately after the California order for 521 grams of sodium thiopental went through, Britain's secretary of state for business, Vince Cable, issued an order barring any further exports of the drug for use in executions.
Like most of the civilized world, the United Kingdom does not allow the death penalty.
In the meantime, Scott Kernan, CDCR's undersecretary for operations, was trying to get enough of the death drug domestically to carry out at least one execution. A series of e-mails show contacts between California and Arizona, which recently had imported its own supply — and there are indications that Gov. Arnold Schwarzenegger was willing to call his counterpart in Arizona to help consummate the deal.
"I'm sure either the secretary or even the governor could make a call," a Sept. 9 e-mail from Kernan to McAuliffe notes.
Then on Sept. 29, Kernan sent an e-mail to Assistant Secretary Anthony Chaus discussing a "secret and important mission." Kernan wanted Chaus to send a team to a state prison complex in Florence, Ariz., a desert town about 40 miles southeast of Phoenix, to pick up 12 grams of the death drug.
At midnight Sept. 30, the warden in Florence gave the CDCD agents 24 vials, each containing half a gram of sodium thiopental. The agents drove it to Bakersfield, where another team picked up the vials and drove the rest of the way to San Quentin.
In a stomach-turning e-mail, Kernan sent a note Sept. 29 to an unnamed Arizona official saying "you guys in Arizona are life savers" and offering to "by [sic] you a beer next time I get that way."
By then, a federal judge had delayed Brown's execution until 2011.
Among the most startling revelation was the sheer quantity of sodium thiopental California eventually ordered from the firm in London. Even with training supplies and backup, it only takes between six and 12 grams of sodium thiopental to render a prisoner unconscious — meaning that the 521 grams that CDCR purchased for $36,413 are enough to kill between 43 and 86 people. The expiration date on the chemical is 2014.
It's highly unlikely, given the legal hurdles and time involved in even one execution, that California would schedule more than three over the next three years. What possible use could the state have for so much death drug?
Thornton, CDCR's press person, wouldn't respond to our queries. But Natasha Minsker, the director of the ACLU's Death Penalty Project, said she's concerned that California will try to become a supplier for other prison systems. "It certainly raises questions," she told us.
There's a lot missing from the documents. In many instances, the names of the officials who sent and received e-mails are redacted. And there are obvious pieces of the puzzle missing from the files CDCR has released.
"There's no e-mail from the DEA or the FDA," Minsker said, "although CDCR was clearly contacting them. There's nothing from the governor's office, although it's likely they were also involved."
Overall, Minsker said, the documents "show how sneaky CDCR was trying to be about all of this."
The ACLU filed another suit Dec. 13 seeking the release of some of the redacted material as well as records of CDCR's efforts between October and December.
If those documents are ever released, they may address some of the looming questions about the material the state uses to kill people.