Drug shortage changes La. capital punishment

Gerald Bordelon welcomed death by an executioner’s hand last year for sexually assaulting and strangling his 12-year-old stepdaughter.

Bordelon likely is the last death row inmate in Louisiana to die with the assistance of an anesthetic agent called sodium thiopental.

The state’s remaining supply of sodium thiopental expired earlier this year, and additional shipments are scarce because the only U.S. company that manufactured the drug, Hospira Inc., no longer makes it.

Because of the shortage, Louisiana is switching to pentobarbital as the agent that renders condemned killers unconscious before pancuronium paralyzes them, and potassium chloride stops their hearts, said Pam Laborde, spokeswoman for the state Department of Corrections.

Pentobarbital is used to euthanize animals.

Laborde said no executions  are scheduled in Louisiana, where 84 inmates are awaiting death by lethal injection.

The switch could jumpstart the state’s attempt to validate the lethal injection procedure for future executions. However, death penalty critics said a new drug could mean new legal challenges.

“Challenges have been raised against the drug, mainly because it was untested for this use,” said Richard C. Dieter, executive director of the Death Penalty Information Center in Washington, D.C.

“Courts have generally said that the inmate has to show there is a substantial risk of severe pain, and that hasn’t yet been possible, since little is known about the effects of this drug for this purpose,” Dieter said.

Laborde said the drug has the approval of the Food and Drug Administration for use in humans as a sedative.

“The states of Oklahoma and Ohio have both used pentobarbital in executions without any apparent complications and courts have upheld the use of the drug,” she said.

Ohio used a lethal dose of pentobarbital in March to put to death Johnnie Baston for killing a Toledo shopkeeper.

Oklahoma condemned killer John David Duty died in December from a combination of drugs, including pentobarbital, for strangling a cellmate.

Texas planned to use pentobarbital earlier this month to execute Cleve Foster in the rape and murder of a 28-year-old woman. The U.S. Supreme Court stayed the execution amid questions about the competency of Foster’s legal representation.

The Texas chapter of the American Civil Liberties Union was among organizations that also criticized the planned use of pentobarbital.

“The Texas Legislature has failed to enact any legislation to ensure that the individuals responsible for extinguishing human life are properly trained and qualified, and that the drugs they administer are both effective and humane,” the ACLU said in a report.

Dieter said a switch to a new drug, such as what Louisiana is doing, sometimes requires a public review and comment period.

“This process can take many months to a year,” he said.

Laborde said new procedures and policies for implementing the death sentence in Louisiana do not require a review period.

State Sen. Elbert Guillory, D-Opelousas, is the author of legislation last year that dropped that requirement. The bill, now Act No. 889, quietly passed through the Louisiana Legislature amid budget battles and the BP oil disaster.

Louisiana and other states are adopting a new lethal injection drug because of Hospira’s announcement that it was exiting the sodium thiopental market due to the drug’s use in executions.

“We could not prevent the drug from being diverted to departments of corrections for use in capital punishment procedures,” the Lake Forest, Ill.-based company said in a statement.

Some states are acquiring sodium thiopental overseas or are turning to other states. Georgia, for example, executed inmates last year and this year, after getting the drug from a distributor in London. The U.S. Drug Enforcement Administration later seized the state’s supply amid questions about how it was obtained.

Louisiana has not executed an inmate since Bordelon elected to die Jan. 7, 2010, after waiving his appeals.

However, the shortage of sodium thiopental has thwarted the state’s attempt to validate the lethal injection procedure for future executions.

The state is trying to stymie lawsuits like the one filed by condemned killer Nathaniel Code in 2009. Code challenged whether the state followed proper procedures in putting lethal injection in place.

State District Judge Mike Caldwell ruled in February that it would be premature to validate the executions, given the shortage of sodium thiopental.

The state wants the judge to declare that the state’s lethal injection rules and regulations meet statutory and constitutional muster.

“The whole purpose of the litigation is to see if we can get the court to validate it on the front end,” said Wade Shows, an attorney for the state Department of Corrections.

As a result of the switch in drugs, Shows said he can go back to court and ask for the validation, which aims to limit the inmates’ legal challenges.

Capital Appeals Project attorney Elizabeth Cumming, who represents condemned killer Anthony Bell and 17 other death row inmates, said the state is acting prematurely.

She said the state’s death penalty procedures have changed in the past and could change in the future.

The Capital Appeals Process receives funding from the government to represent indigent defendants in death penalty cases.

 

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