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Tortured to Death in the US

"The manner in which Texas carries out the execution of human beings is riskier, less transparent, and has less oversight than the euthanasia of cats, dogs, birds, lizards."

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Meanwhile, other states had already turned to Dream Pharma. Documents obtained in January by the ACLU of Northern California unearthed a trail of e-mails between numerous state authorities beginning in the summer of 2010 showing wide efforts to find sodium thiopental wherever they could, including asking local hospitals. A shipping invoice obtained by Reprieve revealed that Arizona had ultimately placed an order from Dream Pharma, which was shipped to the Arizona State Prison Complex on September 28. Part of the stash was sent to California. (“You guys in AZ are life savers,” one California official wrote.) Another portion was used to kill Jeffrey Landrigan a few weeks later, despite his lawyers' protests that Arizona “provided no information regarding the integrity of the drug.” Afterward, his attorney described his execution. “Mr. Landrigan's eyes were still open,” he said.

In London, the botched executions of Rhode, Hammond and Landrigan gave Reprieve sufficient ammunition to persuade British authorities to forbid the export of drugs for US executions—a ban announced on November 29. But days later, another foreign shipment of sodium thiopental arrived in the United States, in Nebraska. The source was an Indian company called Kayem Pharmaceuticals, based in Mumbai. In February, Kayem shipped another stash, this time to South Dakota.

Like Dream Pharma, Kayem's headquarters are unimpressive, “a two-room…office and storeroom with a balcony that doubles as a kitchen,” according to the Times of India, which was told by Kayem's director, Navneet Verma, “several American states have now approached us for sodium thiopental.” Days after that story broke, however, and after a news conference held in India by Reprieve, Verma reversed course. "I will be requesting my buyers to declare that they will not be using [the drug] for the lethal purposes,” he said.

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As some states bought sodium thiopental overseas, others were busy reworking their formulas. The first to do so was Ohio, which, after a series of grisly botched executions of its own, changed its protocol from the common three-drug “cocktail” to a single deadly dose of sodium thiopental in 2009. In light of the shortage, however, Ohio announced that it would replace the drug with a fast-acting barbiturate called pentobarbital, mostly used for euthanizing animals. Pentobarbital had never been used on its own for executions. This past March, Ohio killed Johnnie Baston using the sole new drug, despite pleas from his victim's family that his life be spared.

Soon after that, Texas, the death penalty capital of the United States, announced that it, too, would switch to pentobarbital. Attorneys for Cleve Foster, scheduled to die on April 5, protested that the drug had been adopted in secret, and they scrambled to halt his execution. Their case was bolstered by a new report by the ACLU of Texas and Northwestern University noting that “the manner in which Texas carries out the execution of human beings is riskier, less transparent, and has less oversight than the euthanasia of cats, dogs, birds, and lizards.”

There were other problems. Records obtained by Foster's attorneys showed that authorities had not only violated Texas's Administrative Procedures Act by adopting a new execution drug without public comment but also violated the Controlled Substances Act by using a bogus DEA registration number to obtain it. As Foster's attorney, Maurie Levin, explained on the eve of his scheduled execution, purchase documents had inadvertently revealed a DEA registration code. “We ran [the number] and it appeared to be registered to the Huntsville Unit Hospital, a notorious institution that was closed down in 1983,” Levin said. DEA registration codes are supposed to be renewed every three years. In a letter to Eric Holder, Foster's attorneys argued that the outdated DEA number was proof that the Texas Department of Criminal Justice had been “purchasing and dispensing controlled substances with a DEA registration number registered to a nonexistant entity” for twenty-eight years. Holder did not intervene, but on April 5, the US Supreme Court stayed Cleve Foster's execution on unrelated grounds. “To be so determined to carry out an execution at all cost—the impunity, the lawlessness—to me that's the thing that is the most striking,” Levin said.

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