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ACLU Lawsuit Seeks Disclosure of Execution Drugs & Procedures

May 21, 2013

DENVER – The ACLU of Colorado filed suit this morning seeking to identify the exact drugs and procedures that are planned for the execution of death row prisoner Nathan Dunlap, as well as the pharmacies that may provide lethal injection drugs to the state.

The suit follows the Colorado Department of Corrections’ (CDOC) denial of an ACLU request for disclosure of communications between the agency and compounding pharmacies and a “restricted distribution” document outlining the execution protocol and training that has been distributed to prison officials “on a need-to-know basis.”

The ACLU’s complaint, which was filed in Denver District Court by ACLU Cooperating Attorney Lauren Schmidt of Brownstein Hyatt Farber Schreck, LLP, contends that those documents will facilitate public discussion about the use of the death penalty in Colorado, including the ethical implications of pharmacists preparing and providing execution drugs.

“By refusing to disclose the details of the execution procedure, including the drug or drugs that may be used and how they are obtained, as well as information about the companies that may be supplying the chemicals, CDOC infringes, without adequate justification, on the public’s legitimate right to information about how its government operates with regard to one of its most serious undertakings,” said ACLU of Colorado Legal Director Mark Silverstein.

Last month, CDOC sent a letter to compounding pharmacists requesting “sodium thiopental, pentobarbital, pancuronium bromide, potassium chloride, or similar drug or drugs that the CDOC can purchase.”

Colorado’s lethal injection law specifies a continuous injection of just one drug – either sodium thiopental “or other equally or more effective substance sufficient to cause death.” CDOC’s request for pancuronium bromide and potassium chloride in addition to sodium thiopental suggests the agency plans to use, instead, a three-drug “cocktail” method that has come under legal and medical criticism in other states for posing increased risks of excruciating pain and suffering and for its record of botched executions.

In the three-drug approach, a non-lethal dose of an anesthetic or barbiturate, such as sodium thiopental, is administered first. That is followed by a paralytic, like pancuronium bromide, and then potassium chloride to cause death by cardiac arrest. However, when the initial anesthetic does not function properly, the inmate experiences tremendous pain while paralyzed and unable to move, breathe or communicate.

In 2006, California halted executions after a federal judge found “substantial evidence” that in more than half of the state’s lethal injection executions, the level of the anesthetic drugs was inadequate to induce anesthesia, leading to a death that is “so painful that it offends the 8th Amendment ban on cruel and unusual punishment.”

The ACLU’s complaint also notes that the Colorado Board of Pharmacy Rules of Professional Conduct prohibit “any practice which detrimentally affects the patient” and state that a “pharmacist may not dispense a prescription drug or a controlled substance based on an order that does not list a specific patient.”

“If compounding pharmacies in Colorado plan to participate in Colorado’s next execution, the public has a right to know,” said Silverstein, “and the State Board of Pharmacy might be interested in investigating whether pharmacies violate their license and state rules when they supply a drug for the express purpose of killing rather than healing.”

Read more about this case here.

Facts about the death penalty.

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