Amid Drug Shortage and Controversy, California Proposes New Execution Method
By Kale Williams
California corrections officials proposed a new one-drug execution protocol Friday in an effort to conform to a judge's order nearly a decade ago that ruled the state's three-drug lethal injection method unconstitutional, but experts say it doesn't mean the resumption of capital punishment any time soon.
"These protocols get the state closer to the next round of litigation," said Robert Dunham, executive director of the Death Penalty Information Center, a research organization with a skeptical but formally neutral position on capital punishment. "But it's unrealistic to expect executions will resume in California any time soon."
Under the new protocol, the state would use one of four barbiturates to execute condemned inmates, including two that have never been used for that purpose.
The state's old method called for a sedative, sodium thiopental, to render the inmate unconscious, followed by chemicals that paralyze the nervous system and stop the heart. Any one of the four drugs can be lethal on its own at high doses, health experts said.
California executed its last prisoner in January 2006, just six months before a federal judge ruled that flaws in the state's injection procedures, inadequate staff training and conditions in the death chamber at San Quentin State Prison created an unacceptable risk of a botched execution and a prolonged and agonizing death.
New death chamber
The state has built a new death chamber and rewritten its injection procedures, but has not persuaded federal courts to lift their injunction against executions.
Meanwhile, support for the death penalty among registered voters in California has eroded in recent years, dropping to 56 percent, according to a 2014 Field Poll. While that number represents the lowest level reported in nearly 50 years, it still indicates a considerable majority in favor of capital punishment.
Experts saw Friday's proposal as a step toward resumption of executions in California, but cautioned that many steps remain before any are carried out. There are 747 condemned inmates on San Quentin's Death Row -- more than in any other state -- and at least 17 have exhausted their appeals, except for a challenge to the method of execution.
Many steps to executions
"It's clear they've followed through on adopting a single-drug procedure," said Jen Moreno, a staff attorney at UC Berkeley's Death Penalty Clinic. "But there's a lot that needs to happen between now and when executions resume."
The proposed protocols will be subject to a 75-day comment period, then the Department of Corrections will have a year to collect, categorize and respond to those comments. Any necessary revisions will follow and then the plan in its final version will be submitted to state officials.
Under the plan, condemned inmates would be given either sodium thiopental, pentobarbital, secobarbital or amobarbital, the latter two of which have never been used in executions. San Quentin's warden will choose which of the four drugs to use. The selection will take into account changing factors such as the availability of each drug.
The two drugs that have been used in executions -- sodium thiopental and pentobarbital -- are applied in hospitals to help anesthetize patients, said Paul Lofholm, a pharmacist and owner of Ross Valley Pharmacy in San Rafael.
Lofholm described the other two drugs -- amobarbital and secobarbital -- as obsolete barbiturates that had been used as sleep aids but were taken off the market years ago, replaced by benzodiazepines, a safer, less addictive class of drugs that includes Valium and Ativan. He said amobarbital takes the longest of the four options to take effect, but only by a matter of minutes.
Drugs that are no longer sold commercially can still be made. Lofholm said the active ingredient would have to be purchased from a chemical supplier, then mixed with water and put through a sterile filter or autoclave to make it injectable.
The Department of Corrections said in its proposed protocols that if the agency is unable to use its own compounding pharmacy or other state resources to make the lethal drugs, it's allowed to contract with a private compounding pharmacies.
Asking pharmacists to supply drugs that end lives -- either for an execution or an assisted death of a terminally ill patient -- may put them in a difficult position. "But if there's a need and it's a legitimate need, we ought to think that through," he said.
Getting ahold of the drugs presents a potential roadblock in and of itself. The two drugs that have been used in previous executions have become increasingly hard to come by because drug manufacturers, in the U.S. and abroad, are permitting their products to be used only for medicinal, therapeutic purposes, not for executions.
"There are definitely some questions raised by these drugs and whether they are going to be able to find safe and legal ways to get them," Moreno said. "Thiopental isn't available anywhere in the country, and neither amobarbital or secobarbital have ever been used in executions."
Hospira, the last U.S. supplier of sodium thiopental, halted production in January 2011 under pressure from the government in Italy, where its plant was located. Production of the drug and possible replacement chemicals continued abroad, but the European Union, whose members have all abolished the death penalty, passed rules in December 2011 forbidding export of the drugs to the United States for use in executions.
Can't import the drugs
"Pharmaceutical companies don't want anything to do with this," Dunham said. "Their mission as companies is to save lives, not take them, and they don't want the bad press."
The U.S. Food and Drug Administration has also declared that execution drugs may not be legally imported into the country, and in June blocked a shipment of sodium thiopental that Nebraska had arranged with a supplier in India.
California prison officials managed to bypass the restrictions and acquire sodium thiopental from a British exporter, but the drug's shelf life expired in May 2014.
Sodium thiopental has been largely replaced by another sedative, pentobarbital, which Texas has used in its 11 executions this year and supplied to Virginia for an execution there. A judge in Montana ruled in October that pentobarbital does not comply with that state's law requiring an "ultra-fast-acting barbiturate" to render the inmate unconscious.
Danger of untested drugs
As for amobarbital and secobarbital, Dunham said that using untested drugs more or less amounts to human experimentation, which could open the state up to another round of litigation.
Despite the challenges, Kent Scheidegger of the Criminal Justice Legal Foundation, whose lawsuit on behalf of victims' families required California to draft rules for one-drug executions, was confident that executions would resume in the near future.
"This is a very important milestone," Scheidegger said. "This should have happened years ago, but the resumption of justice is in sight."
San Francisco Chronicle staff writers Bob Egelko and Victoria Colliver contributed to this report.
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