Tag Archives: lethal injections

Judge rules U.S. government’s lethal injections break law, halts execution

By Jonathan Allen and Peter Szekely

(Reuters) – A U.S. District Court judge in Washington ruled on Thursday that the Justice Department’s new lethal injection protocol violated drug safety laws and ordered a planned execution for Friday to be halted.

Since resuming federal executions after a 17-year hiatus in July, the Department of Justice has been injecting condemned inmates with lethal doses of pentobarbital, a highly regulated barbiturate. The department executed three murderers in July and a fourth on Thursday and had planned to execute Keith Nelson on Friday.

U.S. District Judge Tanya Chutkan ruled that the department was breaking the Food, Drug, and Cosmetic Act (FDCA) by administering the pentobarbital without a medical practitioner’s prescription, agreeing with death row inmates who sued the government.

“Where the government argues that a lethal injection drug is legally and constitutionally permissible because it will ensure a ‘humane’ death, it cannot then disclaim a responsibility to comply with federal statutes enacted to ensure that the drugs operate humanely,” Chutkan wrote in a 13-page opinion.

Because pharmaceutical companies refuse to sell pentobarbital for use in executions, the Justice Department has said it is instead paying a pharmacist in secret to mix up small batches of the drug.

Chutkan ruled that this also violated the FDCA, which forbids pharmacists from making copies of drugs already available on the market after having received safety approval from the Food and Drug Administration.

Justice Department lawyers immediately asked the U.S. Court of Appeals for the District of Columbia Circuit to overturn Chutkan’s ruling.

That court has previously ruled that execution drugs are at least partly governed by drug safety laws. In 2013, it upheld an order, which continues to bind the FDA, that stopped imports of sodium thiopental that were headed to state execution chambers.

Prior to July, there had been only three federal executions since 1963, all between 2001 and 2003, all using sodium thiopental. As supplies of that drug vanished, Texas, Missouri and other states that use capital punishment switched to using pentobarbital, and the Justice Department announced last year it would follow suit.

Chutkan ruled that Nelson’s execution by lethal injection could proceed if the Justice Department avoided copying FDA-approved drugs and had a physician-issued prescription in the condemned prisoner’s name. The American Medical Association and other clinicians’ groups have said enabling an execution is against medical ethics.

The Justice Department has said it is necessary to promise secrecy to its pentobarbital suppliers. Soon after President Donald Trump’s inauguration in 2017, the department spent two years building a small network of companies to make and test the drug, a Reuters investigation found.

Nelson, convicted of raping and murdering 10-year-old Pamela Butler in Kansas in 1999, is one of 16 inmates on federal death row who sued the Justice Department over its lethal injection protocol.

Chutkan issued orders blocking the inmates’ executions while the litigation continued, which were swiftly overturned by the U.S. Supreme Court earlier this year, and three of the plaintiffs have since been executed by the defendants.

(Reporting by Peter Szekely; Editing by Toby Chopra and Bernadette Baum)

Oklahoma to resume lethal injections after plan to use gas for executions stalls

By Jonathan Allen

(Reuters) – Oklahoma intends to resume executions of condemned inmates using lethal injections after suspending capital punishment in 2015 following a series of botched executions, state officials said on Thursday.

The state had been developing a new execution protocol in which it would instead asphyxiate inmates using nitrogen gas, a plan Attorney General Mike Hunter unveiled in 2018.

But development of the new gassing protocol was taking too long and the state has since found a new supply of lethal drugs, Hunter said at a news conference in Oklahoma City alongside Governor Kevin Stitt.

“It is important that the state is implementing our death penalty law with a procedure that is humane and swift for those convicted of the most heinous of crimes,” said Stitt, a Republican.

Lawyers for death-row inmates said the announcement would revive their ongoing challenge to Oklahoma’s lethal injection protocol, which they say lacks transparency and breaches the U.S. Constitution’s ban on “cruel and unusual” punishment in its current form.

“Oklahoma’s history of mistakes and malfeasance reveals a culture of carelessness around executions that should give everyone pause,” Dale Baich, a federal defender representing some of the inmates, said in a statement.

Until 2015, Oklahoma had one of the busiest execution chambers in a country where a majority of states and the federal government allow capital punishment, a practice most countries have abolished.

The state’s executions stopped after serious errors. In 2014, an inmate convulsed and took more than 40 minutes to die after the state used an untested combination of three lethal drugs. In 2015, another inmate was executed using the wrong drug.

Oklahoma is returning to the same three-drug combination used in the botched 2014 execution, Hunter said, but has updated its protocol to include better training and oversight. The drugs are midazolam, a sedative; vecuronium bromide, a muscle relaxant; and potassium chloride, which stops the heart.

Hunter declined to say how the drugs were being obtained, citing state secrecy laws. He said development of the gassing method would continue in case lethal injection drugs again become unavailable.

The European Union bans the sale of drugs for use in executions, and pharmaceutical companies have refused to sell such drugs to U.S. prison systems. Several states have complained that they are no longer able to obtain the drugs.

There are 47 inmates on Oklahoma’s death row, Hunter said. A federal court ordered the state to give those inmates at least 150 days notice of a new protocol, and no execution dates have been set.

Death-penalty experts criticized the state for not changing the drugs it planned to use.

“No improvement in the protocol will address the fact that midazolam is an inappropriate drug to use in executions,” said Robert Dunham, director of the Death Penalty Information Center, a non-profit watchdog group. “Midazolam is not capable of knocking somebody out and keeping them insensate during the period in which other drugs are administered.”

(Reporting by Jonathan Allen; Editing by Chizu Nomiyama and Dan Grebler)

Exclusive: While battling opioid crisis, U.S. government weighed using fentanyl for executions

By Jonathan Allen

NEW YORK (Reuters) – The U.S. Department of Justice examined using fentanyl in lethal injections as it prepared last year to resume executing condemned prisoners, a then untested use of the powerful, addictive opioid that has helped fuel a national crisis of overdose deaths.

The department revealed it had contemplated using the drug in a court filing last month, which has not been previously reported.

In the end, it decided against adopting the drug for executions. Attorney General William Barr announced in July his department instead would use pentobarbital, a barbiturate, when it resumes federal executions later this year, ending a de facto moratorium on the punishment put in place by the administration of U.S. President Barack Obama.

But the special consideration given to the possibilities of fentanyl, even as federal agents were focused on seizing illegal imports of the synthetic opioid, show how much has changed since the federal government last carried out an execution nearly 20 years ago.

Many pharmaceutical companies have since put tight controls on their distribution channels to stop their drugs being used in executions.

As old supply chains vanished, many states, and the federal government in turn, have been forced to tinker with their lethal recipes. They have experimented with different drugs, in some cases leading to grisly “botched” executions in which the condemned prisoners have visibly suffered prolonged, excruciating deaths, viewed by some as a breach of the constitutional ban on “cruel and unusual” punishments.

In 2017, Nebraska and Nevada announced they would use fentanyl, which is 100 times more powerful than morphine, in new multi-drug execution protocols.

By 2018, the U.S. Justice Department was also examining the “use of fentanyl as part of a lethal injection protocol,” according to a three-page internal memorandum from March 2018 by the director of the department’s Bureau of Prisons.

The Justice Department revealed the memo’s existence in an August court filing after a federal judge ordered it to produce a complete “administrative record” showing how it arrived at the new pentobarbital execution protocol announced in July.

The full contents of the memo are not public. It is not known why the department decided to examine fentanyl, what supply channels were considered or why it ultimately rejected fentanyl as a protocol. The government’s court filing shows the only other named drug examined as the subject of a department memo was pentobarbital, the drug it now says it wants to use in December and January to kill five of the 61 prisoners awaiting execution on federal death row.

Wyn Hornbuckle, a department spokesman, declined to share a copy of the memo or to answer questions about the government’s execution protocol.

Mark Inch, who was the Bureau of Prisons’ director at the time, acknowledged in a brief telephone interview writing the memo. Inch, who abruptly resigned a couple months after writing the memo, declined to answer questions, in part because he said it would be in conflict with his current role running Florida’s Department of Corrections.

Doctors can prescribe fentanyl for treating severe pain. In recent years, illegal fentanyl has become a common additive in bootleg pain pills and other street drugs, contributing to the tens of thousands of opioid overdose deaths in the country each year. Even tiny quantities can slow or stop a person’s breathing.

Earlier this year, an Ohio lawmaker proposed using some of the illegal fentanyl seized from drug traffickers to execute condemned inmates.

‘FUNDAMENTALLY WRONG’

Death penalty researchers say that just because a drug is deadly does not mean it is always appropriate as an execution drug.

“I don’t think it’d be a surprise that the government would be looking at alternative methods of carrying out lethal injection, and fentanyl has been in the news,” Robert Dunham, the director of the Washington-based non-profit group the Death Penalty Information Center, said in an interview.

“But there is just something fundamentally wrong about using a drug implicated in illegal activities as your method of executing prisoners.”

In August 2018, Carey Dean Moore became the first person in the United States to be executed using a protocol that included fentanyl.

Nebraska prison officials injected him with fentanyl and three other drugs. Moore took 23 minutes to die. Witnesses said that before succumbing, Moore breathed heavily and coughed and that his face turned red, then purple.

(Reporting by Jonathan Allen; Editing by Cynthia Osterman)