The American Civil Liberties Union filed a lawsuit this week seeking to force the California Department of Corrections and Rehabilitation to release records detailing how the agency obtained a key lethal injection drug.
Officials have refused to disclose the source of the state's 12 grams of sodium thiopental.
The anesthetic is the first of a fatal three-drug cocktail, used to render condemned inmates unconscious before the following two paralyze breathing and induce cardiac arrest.
Sodium thiopental is in extremely short supply in the United States, prompting some states to share their reserves, or to purchase the drug from overseas.
The latter scenario has stirred concerns over whether the drug meets U.S. quality control standards. If the drug does not work as intended, inmates would likely experience extreme pain, violating their Eighth Amendment rights against cruel and unusual punishment.
California’s previous stockpile of the drug expired Oct. 1. The corrections department secured its current dosages – enough for four executions – shortly thereafter.
In early October, the ACLU’s Northern California chapter filed a Public Records Act request with the corrections department for an array of documents related to sodium thiopental. Specifically, it wants paperwork [PDF] showing how California acquired a fresh batch of drug, and how it disposed of the expired supply.
The civil rights group seeks more than just the typical e-mails and invoices. Its request also includes “copies of the packaging and inserts that came with the drug, including instructions for use,” the lawsuit states.
The corrections department “partially denied” the ACLU request on Nov. 1, according to the lawsuit. “No records were attached, and this response failed to state any estimated date or time when the admittedly disclosable public records would be made available.”
That qualified response – signaling that a portion of the requested documents is releasable – is central to the group’s legal fight for information.
At stake in the case, beyond access to public records, is the question of when and how California will resume executions.
The state has struggled for years to prove it can competently, and constitutionally, kill its condemned inmates. As the Los Angeles Times reported last week:
No executions have been carried out since January 2006 because of reviews and procedural revisions ordered by U.S. District Judge Jeremy Fogel. The death row population has since swelled to 713 — the nation's largest by far.
Only seven of those condemned prisoners have exhausted all of their appeals and are eligible for execution, said Christine Gasparac, spokeswoman for the attorney general's office.
The shortage of sodium thiopental has become an international controversy. Arizona purchased a supply of the anesthetic from a British company, prompting anti-death penalty advocates there to ask their courts to bar the drug’s export.
"There is a list (of banned UK exports) which covers guillotines, gas chambers and electrocution equipment,” Richard Stein, a London attorney representing two U.S. death row inmates, told The Independent. “We are simply asking (Britain’s Business Secretary) Vince Cable to add sodium thiopental to this list."
Amid the loud argument over where states’ sodium thiopental comes from are questions about how the lethal injection drugs do their jobs.
In certain doses, the anesthetic alone can be fatal, Teresa Simmers, a molecular biologist at the University of Miami, told Scientific American.
Zimmers’ review of data from executions found it is unclear which of the drugs actually kills, and there is no firm knowledge on how much sodium thiopental should be administered. She continued:
There's no record of a medical or scientific inquiry into whether this would be the best method. And there isn't any medical evidence to support this approach. Part of the paradox is that it looks like a medical procedure, but it hasn't been rigorously tested. There are no controlled trials, data collection, analysis or peer review of the processes to determine whether it works the way it's been said to work.