Sign held during death penalty protest in Santa Ana, CA. (photo: David McNew, Getty Images)
By Bob Egelko, New York Times
SAN FRANCISCO -- Newly released documents on California's plans to resume executions of condemned inmates show that state officials have understated the cost and the difficulty of obtaining lethal drugs and downplayed the likelihood of botched executions, the American Civil Liberties Union reported Tuesday.
Among the 12,000 documents the ACLU obtained, by court order, from the Department of Corrections and Rehabilitation was a January 2014 email from the department's legal adviser about an execution in Ohio in which the inmate, according to news reports, gasped and convulsed for at least 10 minutes after the fatal drugs were injected. As California studied changes in its own lethal injection procedures, the adviser, Deputy Attorney General Kelly McClease, told a prison official that the media reports were wrong and that the state shouldn't overreact.
``What they witnessed was snoring,'' not suffering, McClease said. ``It's very common with Midazolam (the sedative used in Ohio). ... This big hoopla is beyond ridiculous ... but not at all unexpected.''
Ohio responded differently, halting use of Midazolam last year after accounts of another apparently painful execution with the drug in Arizona.
Descriptions of another problematic execution in Florida in 2006 led then-Gov.Jeb Bush to declare a moratorium, which his successor lifted in 2007. In May 2014, the New Republic magazine obtained autopsy photos of that execution, showing that the needles had been misdirected into the inmate's tissue and he suffered severe burns. In response, according to an email obtained by the ACLU, an unnamed consultant on lethal injections told California prison officials, ``I do not know where or how they got these pictures!'' while expressing no concern about the procedure.
California is working on new execution procedures to replace methods that a federal judge barred in 2006. Ana Zamora, the ACLU's criminal justice policy director in Northern California, said state prison officials have largely ignored reports of botched executions in other states.
Records of the state's current rule-making process showed that ``the Department of Corrections wasn't taking these events seriously and studying them to ensure that we never have that kind of event in California,'' Zamora said.
Other documents include price quotes from what are called compounding pharmacies that would produce the lethal drugs, whose manufacturers no longer supply them for executions. The quotes peg the cost of obtaining drugs for a single execution at between $133,000 and $150,000, compared with the department's estimate of $4,193 when it proposed the new procedures, the ACLU said.
Terry Thornton, a department spokeswoman, said the department would not comment on the documents because they are the subject of an ongoing court case. She said the department would respond to public comments it has received from more than 28,900 people so far on the proposed execution procedures, which would substitute a single drug for the state's previous three-drug combination.
The public comment period has been extended to July 11, and the final regulations are due by Nov. 6 -- two days before an election in which Californians are likely to vote on another initiative to repeal the death penalty and replace it with life imprisonment without parole. A similar measure was defeated by four percentage points in 2012. Supporters of the death penalty are also seeking to qualify a measure that would seek to speed up executions and limit appeals.
California's last execution was in January 2006. A federal judge then ruled that flaws in injection procedures and staff training had created an unacceptable risk of a botched and agonizing execution. The state has struggled to revise its procedures since then, hitting roadblocks in both state and federal courts, and recently settled another lawsuit by agreeing to switch to one-drug executions.
Of the four chemicals the state is considering, the ACLU said, two have never been used in an execution.
The documents also discuss California's attempts to obtain lethal drugs from abroad, despite objections from the federal government.
After the sole U.S. manufacturer of sodium thiopental, the sedative that the state used in executions, halted production in 2009, California and several other states obtained the drug from Great Britain. When a federal judge ruled in 2012 that the imports were illegal because the U.S. Food and Drug Administration had not reviewed their safety, the FDA ordered the states to return the drugs, but California refused and instead kept them until their shelf life expired.
A federal appeals court upheld the judge's ruling in 2013. But the ACLU said the newly released documents show the department was still thinking about sidestepping FDA oversight in 2014, when the unidentified department consultant forwarded a list of prices of lethal drugs from overseas pharmacies that offered to supply them at low cost without a prescription.
The FDA considered such sales illegal, the ACLU said. But McClease, the department's legal adviser, said in a June 2014 email that ``we have been able to locate a source,'' citing the new price list. In a separate posting, she told prison officials that, under the federal rules for importing lethal drugs, California was ``the only state that did everything properly.''