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States Use “Astonishing Lack of Care and Deliberation” to Choose New Lethal Injection Drugs for Death Row Executions

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Tonight Texas plans to use a new drug for the execution of death row prisoner Cleve Foster. Like many states, it is experimenting with its lethal injection process due to a shortage of the sedative sodium thiopental. The new method was shrouded in secrecy until records revealed Texas prison officials chose a replacement execution drug, pentobarbital, without consulting a medical professional and relied on news articles to help them choose a sedative for the state’s three-drug lethal injection cocktail that is intended to prevent pain, inhibit muscle movement, and stop the inmate’s heart. On Friday, the U.S. Drug Enforcement Agency demanded Kentucky and Tennessee hand over their supply of the drug because of concerns it may have been illegally imported. We speak with Maurie Levin in Austin, who filed suit to get details about Texas’s new execution drug. We’re also joined by Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C. [includes rush transcript]

11:25am EST Update: The U.S. Supreme Court has granted a stay in Foster’s execution, pending the disposition of the petition for rehearing of the order denying cert in January raising issues regarding constitutional adequacy of state habeas counsel and related claims of innocence and ineffective assistance of counsel.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: Tonight Texas plans to use a new lethal injection procedure for the first time in three decades. Like several other states, Texas had to change its execution process due to a shortage of sedative sodium thiopental.

The new process was shrouded in secrecy until recently. Now records reveal Texas prison officials chose a replacement execution drug without consulting a medical professional. The documents also show officials relied on news articles to help them choose a sedative for the state’s three-drug lethal injection cocktail that’s intended to prevent pain, inhibit muscle movement, and stop the inmate’s heart. Now, instead of the drug sodium thiopental, Texas will use a substitute drug called pentobarbital, a surgical sedative often used to euthanize animals.

About a dozen states are experimenting with their execution procedure after the only American manufacturer of sodium thiopental announced in January it’s halting production in the United States. Attorneys representing death row prisoners argue the new methods suffer from a lack of oversight to ensure they’re humane.

Prison officials in four states are also accused of trying to stick with using the original drug, sodium thiopental, by purchasing it from a questionable overseas source. On Friday, the Drug Enforcement Agency demanded Kentucky and Tennessee hand over their supply of the drug because of concerns it may have been illegally imported. Just weeks before, the agency seized Georgia’s supply of the drug, which was purchased from the same British-based company called Dream Pharma. The company operates out of the back of a driving school in London.

Well, in Texas, there is an extra layer of alleged illegal behavior in how the state acquired the replacement execution drug it plans to use tonight. New documents reveal the state used a DEA registration number registered to a hospital that hasn’t existed since 1983.

We’re joined now by the attorney who obtained those records. Maurie Levin teaches at the University of Texas Law School’s Capital Punishment Clinic, represented death row prisoners in state and federal courts since 1993. She’s co-counsel for Cleve Foster, who’s scheduled to be executed tonight, 6:00 p.m. Texas time. Foster is scheduled to die for killing a Fort Worth woman in 2002.

We’re also joined by Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C., a nonprofit group that aims to educate the public about capital punishment.

Let’s start in Austin. Maurie Levin, talk about what you’ve learned about the drug being used in this new lethal — lethal injection cocktail.

MAURIE LEVIN: What I’ve learned is fairly minimal, because the nature of the process has been — its hallmark has really been secrecy and a lack of transparency. We have had to go to the courts to compel the Texas Department of Criminal Justice to hand over information about how they were going to execute Mr. Foster, who’s now scheduled for execution today. And they didn’t hand over that information until three weeks ago. So, what we’ve learned, we’ve learned through a lot of effort. And it includes a really astonishing lack of care and deliberation in the manner in which they chose to switch to the drug pentobarbital, instead of sodium thiopental, and the procedure by which it is being incorporated into the execution protocol and the execution protocol itself, none of which was vetted to the public for, you know, comment or consideration by those who have really valid concerns about how executions are carried out in Texas.

AMY GOODMAN: Richard Dieter, can you talk about the significance of this, of the state seizing these drugs in — the DEA, in different states?

RICHARD DIETER: Sure. Sodium thiopental, the first drug that’s in controversy, this is the linchpin that has been used in executions for 30 years in the United States. And now, all of a sudden, it’s being replaced because it’s in short supply around the world. And states are doing this in sort of a haphazard, experimental way, rather than through the expert testimony of doctors about what would be the best way to proceed. And so, we have a lack of due process, a lack of transparency.

When New York changed from hanging to the electric chair a hundred years ago, they had a debate in their legislature, and then it eventually went to the Supreme Court. And they said, “Well, at least there was some due process, some care about this being a more humane procedure.” We haven’t had that in Texas and a number of other states. Instead, there’s, you know, pulling drugs from questionable overseas sources, using drugs that might work, might not work — who knows? It’s a bit of an experiment on human subjects, of course, who are unwilling human subjects. And that raises a lot of ethical issues, as well.

AMY GOODMAN: What do you think has to happen now, Richard Dieter?

RICHARD DIETER: Well, I think that states need to have more transparency. Why not have a procedure where people can comment, where experts, doctors, anesthesiologists could say, “Pentobarbital, this new drug you’re about to use, has adverse reactions on certain people. People, you know, may be allergic to it. Or it doesn’t work as long as the drug you’re replacing.” And it’s crucial that this drug work, because the next two drugs, everybody agrees, are extremely painful. You know, we can kill human beings, but we’re trying to do it humanely, and that all depends on the first drug working. And this is brand new. After 30 years, we’re trying something brand new. That requires the care that a civilized society would use for humane processes. But Ohio has gone forward, Oklahoma has gone forward, now Texas is going forward, with something that’s relatively untried.

AMY GOODMAN: Maurie Levin, I wanted to read to you this letter I have from a Danish company to the Department of Rehabilitation and Correction. This one is in Columbus, Ohio, but has been sent to many states. It’s the Lundbeck Corporation. It says, “In the wake of the decision [of] Hospira to cease production of sodium thiopental, which is used in the execution of prisoners, Lundbeck has become aware that the State of Ohio has now decided to use Lundbeck’s product Nembutal,” which is pentobarbital sodium injection, “for this purpose. Lundbeck is adamantly opposed to the use Nembutal, or any [other] product for that matter, for the purpose of capital punishment.

“We recognize,” the letter goes on to say, “that we cannot control how licensed health care professionals use this or any pharmaceutical product. Nevertheless, we urge you to discontinue the use of Nembutal in the execution of prisoners in your state because it contradicts everything we are in business to do — provide therapies that improve people’s lives.” And it’s signed by Staffan Schüberg, who is the president of Lundbeck Inc.

Your thoughts on this and what this means?

MAURIE LEVIN: My understanding is that that letter was sent to officials with the Texas Department of Criminal Justice, as well. You know, I think it just — it points up the uncomfortable intersection of what are necessarily medical drugs, drugs that are intended to help people, and their use in executions and the killing of people. When — and I don’t know the degree to which Texas took that letter or Lundbeck’s sentiments into account.

We do know that, according to an affidavit given by Rick Thaler, who’s the director of the Correctional Institutional Division of TDCJ, who is the person tasked with making the decision about the drugs and how the executions in Texas are carried out, that what he considered, according to an affidavit by him, in making the switch to pentobarbital were, you know, news reports from Oklahoma, that a couple of executions that had taken place there proceeded without apparent problems, and some of the legal pleadings in Oklahoma litigation and the report of the state’s expert in Oklahoma. He did not, apparently, bother to look at the pleadings of the other side or the expert who gave a declaration and offered testimony on behalf of the inmate’s attorneys. I mean, you know, and all of this points up the fact that there was — you know, there was at least some kind of process in Oklahoma where some of these issues were considered. And the fact that it was considered, to some degree, in Oklahoma doesn’t resolve the question or the need for transparency and process here in Texas. It’s a —- you know, it’s a different system. We do use the three-drug protocol. But, you know, it’s a different execution chamber, it’s a different execution team, all the protocols are different, state to state. So -—

AMY GOODMAN: And what are you asking for in the case — what are you asking for in the case of tonight’s execution? What are you demanding in the case of the execution of Cleve Foster?

MAURIE LEVIN: Well, I mean, we’re asking — we have a couple of different things that we’re asking for from different venues. We filed a lawsuit seeking — asking the courts to declare this new protocol, using pentobarbital, void for failure to comply with the Administrative Procedure Act. And lest we think that that is just some kind of administrative requirement, we should remember that the Administrative Procedure Act, the APA, and the requirements reflected in that law are those that are at the heart of open government: requirements of notice and comment and open meetings. So, we did ask the trial court in Travis County to declare the protocol, the 2011 execution protocol, void. We were turned down in that request, and that’s on appeal.

We are also asking —- we have sent letters, and you referred to this in your introduction. We have sent letters to the Department of Justice in Washington, D.C., to Attorney General Eric Holder, and to the Texas Department of Public Safety, Steven McCraw here in Austin, outlining what we believe to be illegalities in the manner in which Texas purchased these drugs that they’re planning to use in Mr. Foster’s execution, and frankly, as far as I understand it, in the manner in which they’ve been purchasing drugs since 1983. The authorization number that is required to purchase controlled substances is registered to the Huntsville Unit Hospital, which was shut down in the mid—'80s. So, we're looking at over 25 years of purchases using an authorization number registered to an entity that no longer exists. It does not exist.

AMY GOODMAN: We’re going to leave it there. Maurie Levin, I want to thank you for being with us, co-counsel for Cleve Foster. He’s scheduled to be executed tonight in Texas. She’s represented death row prisoners since 1993 and teaches at the University of Texas Law School’s Capital Punishment Clinic. And thanks to Richard Dieter, executive director of the Death Penalty Information Center.

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