Opinion
No. M1986-00093-SC-OT-DD.
Filed September 21, 2010.
Oral Argument Requested.
PETITION FOR REHEARING ON ORDER SETTING EXECUTION DATE
Comes now Edward Jerome Harbison, through undersigned counsel, and respectfully petitions the Court pursuant to TENN.R.APP.P. 39(a)(3) to rehear this case in light of newly revealed facts indicating that the Court's order scheduling an execution date was entered without the knowledge that the State is unable to carry out Mr. Harbison's execution in accordance with Tennessee's current execution protocol. This Court's order relies upon the fact that, at the time it requested an execution date, the State had the proper means to conduct Mr. Harbison's execution. Rehearing is appropriate under TENN.R.APP.P. 39(a)(3) because this Court "misapprehended" the "material fact" that the State could carry out the execution. In fact, it is currently impossible to carry out Mr. Harbison's execution because the State does not possess enough of the lethal injection drugs to do so. This fact, not revealed by the State at the time it moved for an execution date, supplies ample grounds under TENN.S.CT.R. 12.4(A) as to why an execution date should not have been set.
This petition is also submitted in accordance with the directive in TENN.S.CT.R. 12.4(A) that counsel "shall assert any and all legal and/or factual grounds why the execution date should be delayed, why no execution date should be set, or why no execution should occur."
Moreover, the actions of the State in seeking Mr. Harbison's execution while not revealing it could not be performed constitutes an abuse of this Court's processes and has inflicted psychological torture upon Mr. Harbison.
Finally, the supplier of the drugs used in the lethal injection process recently stated that lethal injection is not an indicated usage. Such use of these drugs will violate the Federal Controlled Substances Act and the Federal Food, Drug Cosmetics Act.
In support of rehearing, Mr. Harbison would show the following:
Background
1. On July 26, 2010, the State requested this Court to schedule Mr. Harbison's execution for the reason that "[t]here [are] now [] no legal impediments to Harbison's lawful execution." (State's motion dated 7/26/10 p. 2).
2. On Friday, September 3, 2010, Mr. Harbison filed a response requesting the Court to deny the State's motion and provide sentencing relief or certify that the case warrants a commutation from the Governor.
3. On Tuesday, September 7, 2010, WSMV-TV in Nashville reported "that drug manufacturer Hospira has stopped delivering Panthanol [sodium thiopental]." Sodium thiopental is the first drug in the three drug protocol and is intended to anesthetize the inmate. (Attachment A). The report said, "the state of Tennessee has enough lethal injection drug to carry out only one more execution." Id. See also http://www.fda.gov/Drugs/DrugSafety/DrugShortages/ucm050792.htm (noting shortage of thiopental).
4. On Friday, September 10, 2010, the law office representing Mr. Harbison (Federal Defender Services of Eastern Tennessee, Inc.) learned the State "has a sufficient supply of sodium thiopental to carry out an execution" and it "will not have passed its expiration date prior to its use in any execution currently scheduled." (Attachment B, letter from Mark A. Hudson, Senior Counsel with Tennessee's Office of Attorney General, dated 9/10/10).
5. On Tuesday, September 14, 2010, before Mr. Harbison was able to advise this Court of the drug shortage, this Court entered its order scheduling Mr. Harbison's execution for February 15, 2010.
6. On Wednesday, September 15, 2010, undersigned counsel requested additional information from the State regarding its ability to carry out executions by lethal injection. (Attachment C, letter from Dana C. Hansen Chavis dated 9/15/10). The State failed to provide the requested information. Instead, its newest response contains even less information, as it omits any assurances regarding the expiration dates of the sole quantity of thiopental it possesses. (Attachment D, letter from Mark A. Hudson dated 9/21/10).
7. Also on Wednesday, September 15th, WSMV-TV in Nashville again reported that "the state of Tennessee has enough lethal injection for just one execution because one of the three drugs is not being manufactured right now." (Attachment E).
8. On Saturday, September 18, 2010, The Arizona Republic newspaper ran an article on the sodium thiopental shortage. (Attachment F, Michael Kiefer, "Arizona court asked to delay legal [sic] injection executions," THE ARIZONA REPUBLIC (9/18/10)). It also reported a shortage of pancuronium bromide, the second drug of the three drug protocol that is intended to paralyze the inmate and suppress breathing. Id.
9. On Monday, September 20, 2010, undersigned confirmed the shortage of pancuronium. The American Society of Health Systems Pharmacists website reports: "Teva had recalled their pancuronium products because some products may not meet specifications for their expiration dates. They have now discontinued their presentations. Hospira's product is on back order due to increased demand for product. Hospira is the only manufacturer of pancuronium." See http://www.ashp.org/DrugShortages/Current/ (last visited Sept. 20, 2010).
Given the recency of this information, undersigned has not been able to obtain information from the State regarding the status of its supply of pancuronium.
10. This petition is timely filed within ten days of the Court's order dated September 14, 2010. TENN.R.APP.P. 39(b).
Rehearing should be granted because the State sought an execution date although unable to carry it out
11. The State sought an execution date for Mr. Harbison either with deliberate indifference for the fact, or, knowing the fact that it did not have enough sodium thiopental to carry out the execution.
12. In 2007, the State of Tennessee implemented a new execution protocol. That protocol requires "that there are enough lethal injection chemicals kept in inventory at RMSI to carry out three executions." (Attachment G, protocol p. 36, ¶ 1). The protocol ensures this inventory by requiring "[t]he Warden and the designee jointly [to] verify all inventories of LICs [lethal injection chemicals] on a semi-annual basis (January/July), at a minimum, and subsequent to each execution." ( Id. p. 37, ¶ 5).
13. Less than a week after the new protocol was implemented, Phillip Workman was executed by lethal injection. ( See Attachment H, timeline p. 1). Based upon the requirements of the protocol and the recent representation of the State's counsel, it appears that the inventory requirement of a quantity of drugs for three executions was obtained before the next scheduled execution.
14. In February 2009, Steve Henley was executed by lethal injection, thereby depleting the lethal injection inventory by one. ( See id.). According to the protocol, another quantity of the lethal injection drugs should have been ordered at that time. (Attachment G, protocol p. 36, ¶ 1 and p. 37, ¶ 5). Based on facts available to date, it appears that another quantity of the drugs was not obtained.
15. In December 2009, Cecil Johnson was executed by lethal injection. ( See Attachment H, timeline p. 2). Based on facts available to date, this execution again depleted the lethal injection inventory by one and left one quantity of drugs available for an execution.
16. Also in December 2009, the State requested an execution date for Gaile Owens. In April 2010, this Court ordered her execution for September 28, 2010. ( See id. p. 2). Based on facts available to date, this execution would have used the remaining quantities of lethal injection drugs.
According to facts available to date, there has been a shortage of sodium thiopental since at least March, 2010. The Kentucky Department of Corrections says, "We've had the drug on back order since March. . . . The company that supplies it to us advised that they were unable to produce it because they weren't able to get the active ingredient from their supplier." (Attachment I, Kathy Lohr, " All Things Considered: States Delay Executions Owing to Drug Shortage," NAT'L. PUB. RADIO (9/16/10)). See also Attachment J, letter from J. Michael Brown, Secretary, Kentucky Justice and Public Safety Cabinet, dated August 19, 2010 and letter from Ellen M. Hesen, General Counsel, State of Kentucky, dated August 23, 2010.
17. Also in April 2010, the State requested another execution date be set; this time for Stephen West. ( See id. p. 2). Based on facts available to date, assuming the Owens execution was carried out there would not have been a quantity of lethal injection drugs sufficient to perform West's lethal injection execution in accordance with the protocol.
18. In May 2010, the State requested an execution date for Billy Ray Irick. ( See id. p. 2). Assuming execution dates were set for Owens and West and one of these executions was carried out, based on facts available to date, there would not have been a quantity of lethal injection drugs sufficient to conduct another lethal injection execution in accordance with the protocol.
19. On July 6, 2010, the State requested an execution date for Edmond Zagorski. ( See id. p. 3). Assuming execution dates were set for Owens, West and/or Irick and one of these executions was carried out, based on facts available to date, there would not have been a quantity of lethal injection drugs sufficient to carry out another lethal injection execution in accordance with the protocol.
20. On July 14, 2010, the Governor commuted the death sentence of Gaile Owens. ( See id. p. 3). Pending in this Court were the State's requests for three execution dates. On July 15th and 19th, execution dates were scheduled for West and Irick, respectively. ( See id.). Assuming the execution of either West or Irick was carried out, based on facts available to date, the third quantity of lethal injection drugs would have been used. There would not then be a quantity of lethal injection drugs sufficient to conduct another lethal injection in accordance with the protocol.
21. On July 26, 2010, the State requested this Court set Mr. Harbison's execution date. ( See id. p. 3). At that time, two execution dates were already scheduled (West and Irick), one request for an execution date was pending (Zagorski), and — based on facts available to date — only one sufficient quantity of lethal injection drugs was available.
22. On September 7, 2010, this Court scheduled the execution of Zagorski. This increased the number of pending, scheduled executions to three. ( See id. p. 3). Based on facts available to date, only one sufficient quantity of lethal injection drugs was available.
23. The following week, when this Court entered an order for Mr. Harbison's execution, the total number of pending execution dates the State had secured increased to four. ( See id. p. 3). Based on facts available to date, there remains only one sufficient quantity of lethal injection drugs.
24. When the State requested and obtained an execution date for Mr. Harbison, it did so although it knew, should have known, or was deliberately indifferent to the fact that Mr. Harbison's execution would be factually impossible due to a lack of lethal injection drugs required under the protocol.
Rehearing should be granted because the State's actions in seeking to schedule Mr. Harbison's execution date (while failing to reveal the execution could not take place) serve to inflict psychological harm upon Mr. Harbison , in violation of the United States and Tennessee Constitutions.25. The order scheduling Mr. Harbison's execution date for February 15, 2011, has caused him severe stress and extreme anxiety. "The prospect of pending execution exacts a frightful toll" on the condemned inmate, even when an execution date is legitimately obtained. Furman v. Georgia, 408 U.S. 238, 288-89 (1972) (per curiam) (Brennan, J., concurring). See also Smith v. Arizona, 552 U.S. 985, 986 (2007) (Bryer, J., dissenting from denial of certiorari) ("whether it is `cruel' to keep an individual . . . under threat of imminent execution raises a serious constitutional question."). Here, however, when the State obtained an execution date without the ability to carry it out and without following the lethal injection protocol, it abused its authority and this Court's processes. The State's actions in obtaining an execution date under these circumstances serve only to inflict psychological torture upon Mr. Harbison. See State v. Carter, 114 S.W.3d 895, 903 (Tenn. 2003) ("the anticipation of physical harm to oneself is torturous"). See also Doe v. Welborn, 110 F.3d 520, 524 (7th Cir. 1997) (the Constitutional prohibition against cruel and unusual punishment "does not countenance psychological torture merely because it fails to inflict physical injury."), quoting Babcock v. White, 102 F.3d 267, 273 (7th Cir. 1996). Psychological torture inflicted by state actors that rises to the level of outrageousness constitutes a violation of the Due Process Clause. United States v. Broussard, 80 F.3d 1025, 1036 (5th Cir. 1996), citing Miller v. Fenton, 474 U.S. 104, 109 (1985).
26. The State's misconduct is highlighted by the conduct of Kentucky officials who have refrained from scheduling execution dates because the State of Kentucky only has a single dose of sodium thiopental. (Attachment I, Kathy Lohr, " All Things Considered: States Delay Executions Owing to Drug Shortage," NAT'L. PUB. RADIO (9/16/10)). Accordingly, this Court should reconsider the State's motion to set Mr. Harbison's execution date and enter an order denying that motion. See State v. Moore, 273 Neb. 495, 497, 730 N.W.2d 563, 564 (2007) ("every court has the inherent power to control the execution of its orders or processes, to the end of preventing an abuse of them."), quoting Ex parte State ex rel Attorney General, 150 Ala. 489, 43 So. 490 (1907).
Rehearing should be granted because the Court's order scheduling Mr. Harbison's execution relies upon the ability of the State to carry out the execution as directed by Tennessee's execution protocol, and that protocol requires the State to violate federal law27. Last week, drug manufacturer Hospira (the producers of sodium thiopental and pancuronium bromide) denounced use of its drugs for lethal injection executions. (Attachment F, Michael Kiefer, " Arizona court asked to delay legal [sic] injection executions," THE ARIZONA REPUBLIC (9/18/10)). Referring to any new supply of sodium thiopental that may become available, it stated, "Hospira manufactures this product because it improves or saves lives, and the company markets it solely for use as indicated on the product labeling. The drug is not indicated for capital punishment, and Hospira does not support its use in this procedure." Id.
28. The three drugs used in the Tennessee protocol, sodium thiopental, pancuronium bromide and potassium chloride, are regulated by the Federal Controlled Substances Act, 21 U.S.C. §§ 801, et seq., and the Federal Food, Drug Cosmetic Act, 21 U.S.C. §§ 301, et seq., and their respective regulations. Under the Supremacy Clause of the United States Constitution, the State is required to obey the Federal Controlled Substances Act and the Federal Food, Drug Cosmetic Act. Notwithstanding the nationwide controversy surrounding lethal injection protocols, Congress has not created an exception to these Acts for using drugs for a legal execution. The United States Government could prosecute the State actors involved in the lethal injection procedure for violating these federal laws. See Gonzales v. Raich, 545 U.S. 1 (2005).
29. According to the Tennessee protocol, the State intends to prescribe, procure, distribute and administer sodium thiopental, pancuronium bromide and potassium chloride to Mr. Harbison for the purpose of effecting his death by lethal injection.
30. Under the Tennessee protocol, sodium thiopental, pancuronium bromide and potassium chloride will be obtained from a pharmacist and dispensed and administered for use without physician supervision and without the prescription of a practitioner issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice, in violation of the Federal Controlled Substances Act and the Federal Food, Drug Cosmetics Act.
31. Thus, rehearing should be granted and the State's motion to set execution date should be denied so as not to sanction the State's willful violation of federal law.
Respectfully submitted,
FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC.
By: ______________________________ Dana C. Hansen Chavis, BPR # 19098 Assistant Federal Community Defender Attorney of Record
Pursuant to TENN. SUP. CT. R. 12.4(B), Dana C. Hansen Chavis, as attorney of record, requests notification of orders or opinions of the Court by facsimile at (865) 637-7999.
800 S. Gay Street, Suite 2400 Knoxville, TN 37929 Phone: (865) 637-7979 Facsimile: (865) 637-7999Dana_Hansen@fd.org
CERTIFICATE OF SERVICE
I, Dana C. Hansen Chavis, hereby certify that a true and correct copy of the foregoing was sent via facsimile and overnight mail to:
Jennifer L. Smith Associate Deputy Attorney General Office of the Attorney General
425 Fifth Avenue North Nashville, TN 37243 E-mail: Jennifer.Smith@ag.tn.gov Fax: (615) 532-7791 on this the 21st day of September, 2010. _____________________ Dana C. Hansen Chavis Assistant Federal Community Defender
Index of Attachments to Petition for Rehearing
A WSMV-TV Report — Sept. 7, 2010, "Execution Drug Running In Low Supply" B Letter from Mark Hudson, Senior Counsel for Tennessee's Office of Attorney General dated Sept. 10, 2010 C Letter from Dana Hansen Chavis, Asst. Federal Defender to Mark Hudson, Senior Counsel for Tennessee's Office of Attorney General, dated Sept. 15, 2010 D Letter from Mark Hudson, Senior Counsel for Tennessee's Office of Attorney General dated Sept. 21, 2010 E WSMV-TV Report — Sept. 15, 2010, "New Lethal Injection Plan May Be Needed" F The Arizona Republic — Sept. 18, 2010, "Arizona Court Asked to Delay Legal [sic] Injection Executions" G Tennessee's Current Lethal Injection Protocol (effective April 20, 2007) p. 36-37 H Timeline I NPR: All Things Considered Report — Sept. 16, 2010 J Letter from J. Michael Brown, Justice Public Safety Cabinet Secretary, dated Aug. 19, 2010 and letter from Ellen M. Hesen, General Counsel for the Commonwealth of Kentucky, dated Aug. 23, 2010Attachment A WSMV-TV Report — Sept. 7, 2010 "Execution Drug Running In Low Supply"
Executions in Tennessee and all over the country could be delayed because of a shortage of one of the drugs used in lethal injections. Because of this, victims' rights groups are asking for an alternative plan.
Currently, the state of Tennessee has enough lethal injection drug to carry out only one more execution.
Steven Michael West is scheduled to die Nov. 9 in Tennessee for the kidnapping and double murder of a woman and her 15-year-old daughter 24 years ago in Union City.
Billy Irick is scheduled to die Dec. 9 for the rape and murder of a 7-year-old girl he was babysitting in Knox County 25 years ago.
Now that drug manufacturer Hospira has stopped delivering Panthanol, one of the three drugs used in the lethal injection, future executions are uncertain.
Victims' rights advocate Verna Wyatt, who has served on the death penalty commission, said it is unacceptable.
"My immediate thought is for the families who have been waiting so long. To hear that, I'm sure they're going very upset and frustrated. I hope the state has plan B in place," said Wyatt.
But the state is not talking about the shortage, even after days of Channel 4's request for information.
"I cannot discuss the specific amount of drugs we have on hand, but we will be able to carry out the next scheduled execution in November," Department of Correction spokeswoman Dorinda Carter said in an e-mailed statement.
Kentucky prison officials said they have three executions set and enough Panthanol for only one execution.
In addition, the head of the Kentucky Department of Corrections, J. Michael Brown, said the state has checked on the drug availability 50 times since February. The drug has been on order since March 2010, he said.
Hospira said it hopes to be making the drug no later than March 2011, once it finds a supplier for the main ingredient and gets new FDA approval.
"We need to be figuring out what we're going to do. I don't think we need to be waiting until March and then have them say, `Oh, sorry,'" said Wyatt.
Attachment B Letter from Mark Hudson, Senior Counsel for Tennessee's Office of Attorney General dated Sept. 10, 2010 September 10, 2010
VIA FACSIMILE AND U.S. MAIL Stephen A. Ferrell Assistant Federal Defender FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE INC.
800 S. Gay Street, Suite 2400 Knoxville, Tennessee 37929
Dear Mr. Ferrell:
In response to your inquiry of September 7, 2010, this is to advise you that the Tennessee Department of Correction has a sufficient supply of sodium thiopental to carry out an execution in accordance with the current lethal injection protocol. The sodium thiopental will not have passed its expiration date prior to its use in any execution currently scheduled.
Sincerely,
Mark A. Hudson Senior Counsel (615)741-7401
Attachment C Letter from Dana Hansen Chavis to Mark Hudson, dated Sept. 15, 2010 September 15, 2010
VIA FACSIMILE AND U.S. MAIL
Mr. Mark A. Hudson Senior Counsel Office of Attorney General P.O. Box 20207 Nashville, TN 37202
Dear Mr. Hudson:
Yesterday, the Tennessee Supreme Court scheduled the execution of E.J. Harbison for February 15, 2011. This letter is a request for the following information:
• please itemize the exact amount of sodium thiopental available to the Department of Corrections for an execution by lethal injection
• please itemize the exact expiration date of each container of sodium thiopental available to the Department of Corrections for an execution by lethal injection
• please provide the name and location of the custodian(s) of all sodium thiopental available to the Department of Corrections for an execution by lethal injection
• please indicate the estimated date upon which the Department of Corrections reasonably expects to obtain more sodium thiopental for use in an execution by lethal injection please indicate the source of any sodium thiopental the Department of Corrections reasonably expects to receive within the next year
I am also requesting access so that I may conduct a visual inspection of the sodium thiopental currently available to the Department of Corrections for an execution by lethal injection.
As time is of the essence, I would ask for a response to these requests by the end of business on Monday, September 20, 2010. Thank you for your cooperation in this matter.
Sincerely,
FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC.
Dana C. Hansen Chavis Assistant Federal Defender
Attachment D Letter from Mark Hudson, Senior Counsel for Tennessee's Office of Attorney General dated Sept. 21, 2010 September 21, 2010
VIA FACSIMILE AND U.S. MAIL Dana C. Hansen Chavis Assistant Federal Defender FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE INC.
800 S. Gay Street, Suite 2400 Knoxville, Tennessee 37929
Dear Mr. Ferrell:
In response to your inquiry of September 15, 2010, this is to advise you that the Tennessee Department of Correction has a sufficient supply of sodium thiopental to carry out an execution in accordance with the current lethal injection protocol.
Sincerely,
Mark A. Hudson Senior Counsel (615)741-7401
Attachment E WSMV-TV Report — Sept. 15, 2010 "New Lethal Injection Plan May Be Needed"
Attachment F THE ARIZONA REPUBLIC — Sept. 18, 2010 "Arizona Court Asked to Delay Legal [sic] Injection Executions"
Arizona court asked to delay legal injection executions
by Michael Kiefer — Sept. 18, 2010 12:00 AM The Arizona Republic
The Arizona Attorney General's Office is awaiting word from the state Supreme Court on Tuesday on whether two death-row prisoners can be executed this fall.
But on Wednesday, attorneys in the federal Public Defender's Office filed a motion to hold off on issuing death warrants until the state Department of Corrections can prove it has sufficient quantities of the drugs mandated for lethal injection.
Two of the drugs used in the three-drug procedure are nationally in short supply, and executions in Kentucky and Oklahoma have been postponed because of the unavailability of sodium thiopental, a 70-year-old barbiturate used alone or in combination with other drugs for executions.
Furthermore, Hospira, the Chicago-area pharmaceutical company that manufactures thiopental, has notified officials in all 50 states that it does not manufacture the drug for executions and does not sanction such use for it.
Not all states have capital punishment.
"Hospira manufactures this product because it improves or saves lives, and the company markets it solely for use as indicated on the product labeling. The drug is not indicated for capital punishment, and Hospira does not support its use in this procedure," company spokesman Daniel Rosenberg wrote in response to queries from The Republic.
A DOC spokesman said that the department had not received such a letter and added that the state does not have the drugs on hand and will not try to procure them until the high court issues a death warrant.
The state's response to the motion was that it was too early to raise issues as to the availability of the drugs because the official state protocol does not authorize the DOC to obtain them until after the death warrant has been issued.
The Republic first reported on the shortage in May, when an Ohio execution was nearly postponed as state officials scrambled to get enough thiopental to perform the procedure. According to Rosenberg, the shortage is caused by manufacturing problems, specifically with an ingredient of the drug that Hospira obtains from another company. It is not expected to be available until next year.
Supplies of thiopental were further depleted
by a shortage of propofol, best known as the anesthesia drug linked to the death of pop star Michael Jackson. Anesthesiologists began substituting thiopental for that drug in hospital procedures.
In July, The Republic also reported a shortage of pancuronium bromide, a paralytic that keeps the prisoner still as the final and fatal drug, potassium chloride, is injected in the Arizona procedure.
The current legal action was filed on behalf of Jeffrey Landrigan, who killed a Phoenix man in 1989. Landrigan was supposed to die by lethal injection in November 2007. His execution was stayed, first by a U.S. Supreme Court case to determine whether lethal injection in Kentucky constituted cruel and unusual punishment. The following April, the high court decided it did not, but it opened the door for states to examine their lethal-injection protocols.
Landrigan's was the test case in Arizona. Several other death-row inmates filed similar lawsuits in federal court. Those cases were resolved by last October, and a new state lethal-injection protocol was approved by the state and federal courts.
Assistant Arizona Attorney General Kent Cattani said he was anticipating a decision Tuesday from the Arizona Supreme Court as to whether it will issue death warrants for Landrigan and Richard Bible, who murdered a 9-year-old girl in Flagstaff in 1988.
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Procurement
1. Upon direction from the Warden or his designee, a member of the Execution Team checks the supply of chemicals and expiration dates. If he determines that additional chemicals are needed, he contacts the Procurement Officer at RMSI. The RMSI Procurement Officer contacts the Procurement Officer at DeBerry Special Needs Facility (DSNF) to order the needed chemicals. When the chemicals are delivered, the Procurement Officer at DSNF contacts the Procurement Officer at RMSI. One of the members of the Execution Team picks up the chemicals at either the DSNF or the RMSI warehouse. The Warden ensures that there are enough lethal injection chemicals kept in inventory at RMSI to carry out three executions.
Storage of Chemicals
1. The member of the Execution Team and the Warden take the chemicals to the armory area of Building 7 at RMSI. The lethal injection chemicals (LICs) are not stored in the weapon area of the armory due to the occasional employee traffic but rather in the key control section of the armory where there is the least employee need for access. The chemicals are placed in unmovable heavy gauge steel containers with security grade locks or in a small refrigerator that has been equipped with heavy gauge steel bar(s) to prevent mobility and access to the refrigerator without the removal of the locked/secured bars. The refrigerator is plugged into an emergency power outlet with back-up power to the generator in the event of a power outage. Pancuronium Bromide must be refrigerated at approximately 40 degrees to extend shelf life past six months.
2. All locking devices and storage containers are designed to prevent access to anyone without the proper keys or result in such destruction that entry into the container is unmistakable. There is only one key to access each storage container or refrigerator. That key is issued permanently to the Warden of RMSI. The Warden also has the pattern key to the container or refrigerator in his possession. There are no other duplicates produced. The Warden surrenders the key to no one other than the one member of the Execution Team designated for inventorying the LICs and only for the duration of the count and expiration checking of the LICs. Only the Warden or designee is allowed to access the storage containers or refrigerator. 3 The chemicals on hand are monitored for expiration dates. All of the chemical boxes and bottles have an expiration date, and all chemicals are in tamper-proof bottles or containers. As the chemicals reach their expiration dates, they are disposed of by hazardous waste pick-up.
NOTE: The chemical manufacturer may change the concentration of the chemical solution without notification. The label should be carefully checked before mixing.
Accountability of Chemicals
1. A permanently bound ledger is maintained in the armory/key control area where all employees, including the armory/key control officer(s), signs each time they enter the area. The armory/key control officer performs a visual inspection of each container upon arrival at his workstation to ensure the proper band is in place and that the container or refrigerator has not been compromised in any way.
2. A permanently bound ledger is maintained in the storage area that contains a record of each LIC. An inventory of each chemical is maintained on a Bin Card form. Any LICs removed for use, disposal due to expiration, or for any other reason are deducted from the inventory. Any LICs received into the storage container or refrigerator are added to the inventory.
3. Each storage container has a numbered security band that is broken prior to opening the container. The number of each band is recorded in the ledger. When the container or refrigerator is opened for any reason, the band is broken and the justification for entry is recorded in the ledger adjacent to the band number. When the container is secured and a new band is placed on the container or refrigerator, a new number is recorded in the ledger.
4. Upon receipt of the LICs, the Warden or designee proceeds to the armory storage area, secures the LICs, and adjusts the inventory appropriately. Prior to the LICs being placed in storage, the expiration date and lot number or other identifying marking is recorded to ensure that the LIC is properly disposed of at the time of expiration.
5. The Warden and the designee jointly verify all inventories of LICs on a semi-annual basis (January/July), at a minimum, and subsequent to each execution. The Warden and the designee make appropriate entries in the ledger with their full signatures that verify the correctness of the LIC count.
Transfer of Location
1. After the LICs are signed out on the appropriate ledger in the armory for execution purposes, the LICs are placed in an inconspicuous container for transport to the Execution Chamber. The Warden's designee is responsible for the delivery of the LICs to the appropriate individuals in the Execution Chamber.
2. In the event the LICs are not used and not compromised in any way, the LICs are returned to the armory, re-entered on the perpetual inventory ledger, and secured in the appropriate container or refrigerator.
Attachment H Timeline
Attachment I NPR: All Things Considered Report — Sept. 16, 2010
States Delay Executions Owing To Drug Shortage
by KATHY LOHR
September 16, 2010
Some states are delaying executions because of a shortage of sodium thiopental, a drug used as an anesthetic and given to prisoners during lethal injections.
It's one of three drugs used for lethal injection in more than 30 states.
States' problems getting the drug could raise questions about the legality of lethal injection.
`Concerns About Haphazard Method'
Some states have been trying to get additional supplies of the drug for months. In August, Gov. Steve Beshear was asked to sign death warrants for three prisoners in Kentucky but could set only one execution date because it only had a single dose.
"We've had the drug on back order since March," says Todd Henson, a spokesman for the Kentucky Department of Corrections. "The company that supplies it to us advised that they were unable to produce it because they weren't able to get the active ingredient from their supplier."
Hospira, based in Lake Forest, III., is apparently the only manufacturer of the drug. The company has told Kentucky officials it won't be available until early next year.
Two states, Washington and Ohio, use only sodium thiopental in their executions. They administer enough of the sedative to cause an overdose, which kills the prisoner. Ohio officials won't discuss how the shortage will affect upcoming executions.
But questions about lethal injection are not new to Ohio. A year ago, corrections officers spent two hours trying to find a vein in a prisoner, but never did. That execution was stopped. Now, the drug shortage complicates the issue.
"I think it's definitely a problem," says James Hardiman, legal director of the ACLU of Ohio. "Even if there is enough for the initial execution, there is not enough for backups. So we've got — have had — some very serious concerns about this haphazard method of implementing the ultimate punishment."
Ohio officials say they have a backup drug, but would not elaborate. Still, implementing the use of a different drug may be a problem. In Oklahoma, officials want to use a substitute drug. But a judge didn't agree, and last month stopped an execution.
Even if there is enough for the initial execution, there is not enough for backups. So we've got — have had — some very serious concerns about this haphazard method of implementing the ultimate punishment.
James Hardiman, legal director of the ACLU of Ohio
"States can't just change their method of execution without either some legislation — or at least an administrative procedure — that goes before public comment," says Richard Dieter with the Death Penalty Information Center, a group that opposes the death penalty. "And so to make the change is a six-month or a year process."
Three-Drug Cocktail
The U.S. Supreme Court decision that upheld lethal injection focused on the use of the three-drug cocktail. And Dieter says that means states can't carry out lethal injection however they want to.
"If you start to change the drugs, you at least have to make a showing that this has been vetted, tested," he says. "What evidence do you have that this isn't going to be severely painful, and unreliable?"
Legal experts say the shortage has created new questions.
Deborah Denno, a professor at Fordham University Law School, says in states where only this drug is used, executions should not go forward. Other states, Denno says, will have a problem.
"This is the drug that's supposed to induce unconsciousness in an inmate, and if you don't have it, that's per se going to be cruel and unusual [punishment] because the second two drugs are a paralytic agent and a toxic and that's going to be incredibly painful," she says. "And there's consensus on that being inhumane."
More than a dozen executions are scheduled before the end of the year. And more legal challenges are expected as corrections departments try to figure out how to proceed without the use of this key drug.
Attachment J Letter from J. Michael Brown, Justice Public Safety Cabinet Secretary, dated Aug. 19, 2010 and Letter from Ellen M. Hesen, General Counsel for the Commonwealth of Kentucky, dated Aug. 23, 2010 August 19, 2010Juliana Reed Government Relations Director Hospira
275 North Field Drive Lake Forest, IL 60045
Dear Ms. Reed:
As is the case with several states, the Commonwealth of Kentucky's protocol for lethal injection includes the administration of sodium thiopental (Pentothal). In the administration of the judicial process, the Commonwealth has pending several actions dependent upon the availability of this drug. The Kentucky Department of Corrections has had the Pentothal on order since March 2010 and has been told by numerous suppliers and multiple times that the drug is not available due to manufacturing delays at Hospira and that Hospira is currently the sole manufacturer of Pentothal. In fact, contact has been made to check on the status of availability of the drug through suppliers over fifty times since February of this year.
As orders for the drug have now gone unfilled for over five months, we are in need of an immediate response from your company as to the availability of the drug and when shipment can be made.
We appreciate your prompt response and look forward to hearing from you.
Sincerely,
J. Michael Brown Secretary
August 23, 2010
VIA FACSIMILE Juliana Reed, Vice President Government Affairs Hospira
275 North Field Drive Lake Forest, IL 60045 (224)212-2088 700 CAPITOL AVENUE SUITE 100 FRANKFORT, KY 40601 (502) 564-2611 FAX: (502) 564-2517
RE: Sodium Thiopental (Pentothal)
Dear Ms. Reed:
Thank you for responding by telephone to the letter dated August 19, 2010 from the Kentucky Justice and Public Safety Cabinet on behalf of the Department of Corrections regarding the availability of sodium thiopental (Pentothal).
Since the Commonwealth has had outstanding orders for Pentothal since March, 2010, we asked in the August 19th letter whether Hospira was continuing to manufacture Pentothal, and if so, when shipment could be expected. Let me confirm that you advised:
i. Hospira plans to continue to manufacture the drug but has lost its sole supplier of the drug's active ingredient and is the process of obtaining a new supplier of said active ingredient.
ii. Because of the change in supplier, the company will also need to obtain an approval from the Food and Drug Administration.
iii. Hospira does not anticipate being able to have Pentothal available to ship to the Kentucky Department of Corrections until, at the earliest, the first quarter of 2011 (January 1-March 30, 2011).
Please let me know immediately if any of the above is inaccurate as the availability of Pentothal is critical to several pending cases in Kentucky. We will also remain in regular contact with you in the event any of these circumstances change.
Sincerely,
Ellen M. Hesen General Counsel