For the second time in four years Georgia has decided to put a moratorium on executions after questions surfaced about the origin and effectiveness of increasingly hard to get lethal-injection drugs.
The Georgia Department of Corrections announced Tuesday that it was postponing the execution of Kelly Gissendaner indefinitely. Brian Keith Terrell’s upcoming execution was also put on hold. The state wants to test its supply of the sedative pentobarbital to be sure it’s effective. A prison system pharmacist said the dosage prepared to execute Gissendaner Monday night looked “cloudy,” and documents obtained by The Atlanta Journal-Constitution shows the prison system may have been confused about which batch of the drug had been tested.
Gissendaner, who would’ve been the first woman executed in Georgia in 70 years, had eaten her last meal, recorded a final statement and was waiting in a cell just a few steps from the death chamber before the decision to postpone was made.
The moratorium puts Georgia among several states that are struggling to acquire and maintain lethal injection drugs. Under unrelenting political pressure, big pharmacies have stopped selling drugs to states to deliver capital punishment. Georgia and other states have turned to what’s known as compounding pharmacies, smaller business that can custom produce the drugs. To shield those businesses from anti-death penalty activists, Georgia recently adopted one of the nation’s strictest laws that prevents the public from knowing details about how the state acquires its lethal injection drugs.
Anti-death penalty groups and attorneys representing condemned inmates have challenged the efficacy of drugs produced by compounding pharmacies. A botched execution in Oklahoma last year, where an inmate convulsed and thrashed about for 43 minutes before dying, became an example of what states want to avoid.
The Georgia DOC said in statement it decided to test the drugs “out of an abundance of caution.”
An emergency legal motion filed by Gissendaner’s lawyers and obtained by the AJC suggests prison officials questioned the fitness of its drugs after Gissendaner had exhausted virtually all legal avenues to avoid the death chamber.
At 10:25 p.m. Monday officials at the prison called Gissendaner’s lawyers, according the motion, to say the execution would be postponed for several days because the pentobarbital made specifically for Gissendaner’s execution was “cloudy.
They called again five minutes later to say the execution may be carried out after all.
“The prison was no longer sure which drugs they had examined — ‘this week’s or last week’s’ — and that they were considering proceeding,” the motion said.
A state official called Gissendaner’s lawyers a third time to say “they were not planning to proceed, conceding that ‘this particular batch [of drugs] just didn’t come out like it was supposed to.’ There is simply too much uncertainty for the court to allow this execution to proceed,” Gissendaner’s lawyers wrote in the petition.
Corrections spokeswoman Gwendolyn said an independent lab had tested the drugs that would kill Gissendaner for potency and found it to be “within acceptable testing limits.” A few hours later, a DOC pharmacist noted that the pentobarbital was “cloudy.”
“There was never any confusion within the department about the drugs, which were to be used,” Hogan said Tuesday. “When an issue arose, the department took a measured approach and determined that the most prudent course of action was to postpone the execution.”
David Waisel, associate professor of anaesthesia at Harvard Medical Sch0ol, said a “cloudy” dosage could mean there were contaminants in it or the drug was not mixed well. Waisel said it it’s hard to know without information about the origin of the drug.
That’s a secret in Georgia.
The Georgia Supreme Court ruled 5-2 last May the law that keeps lethal injection information secret plays a “positive role” in the capital punishment process. It also is an issue raised in other states. For example, the 9th U.S. Circuit Court of Appeals said Arizona had to had put an execution on hold because of that state’s secrecy law but the U.S. Supreme Court said that execution could proceed.
Gissendaner’s lawyers wrote that while Georgia has asked the courts and the public to trust that they are ensuring the quality of lethal injection drugs, “now, by their own admission, those assurances are revealed as hollow.”
Before that change in state law, records made public disclosed how Georgia bought lethal injection drugs from a London pharmacy that shared an office with a driving school during a nationwide shortage of the drug. Federal regulators later seized the chemical over questions whether the state circumvented the law to get it, effectively blocking executions for months.
State Rep. Kevin Tanner, a Dawsonville Republican who sponsored the 2013 secrecy law, said the state needed to protect those who participated in executions from being harassed by opponents like the ones who asked Georgia’s medical board to revoke the license of a doctor who oversaw Georgia’s executions.
Critics who warned of the legislation two years ago now say the decision is coming back to haunt them.
“We now have a very clear example of why we should not have cordoned off that information from the public,” said state Sen. Nan Orrock, an Atlanta Democrat. “The public’s right to know is being trampled by that legislation. And here we are in a real life situation where we need to have a full understanding of the questions surround the lethal injection chemicals.”
Q: Why was Kelly Gissandaner’s execution stayed?
A. A spokeswoman for the state Department of Correction said the deadly solution of pentobarbital, made by a compounding pharmacy, “appeared cloudy” and out of “an abundance of caution” the execution was called off. A document filed by Gissendaner’s attorney later says that Georgia wasn’t even sure which batch of drugs it had examined, but was considering proceeding anyway.
There has been a string of botched executions by lethal injections in other states that have called the method and drugs used into question. Gwendolyn Hogan of the Department of Correction said the Georgia drugs had been tested earlier by an independent lab prior to Gissendaner’s execution and found to be within accepted parameters.
Q: Where does the state get pentobarbital?
A: From a compounding pharmacy not named. It is unknown because the Georgia General Assembly passed a law that took effect in 2013 classifying as “state secrets” identifying information of those who manufacture, supply, compound or prescribe the drugs used for lethal injections.
Q: Why does that need to be a state secret?
A: Georgia, like many states with the death penalty, is finding it difficult to buy the drugs from mass manufacturers, who face pressure from death-penalty opponents and shareholders to not provide drugs for lethal injections. The Georgia Attorney General’s office has argued the secrecy is necessary because death-penalty opponents have been successful at exerting pressure on companies, and Georgia cannot carry out executions without the drugs.
Q: Has the secrecy law been challenged?
A: Yes. The Georgia Supreme Court ruled in 2014 in a 5-2 decision, saying the law plays a “positive role” in the capital punishment process. The dissenting justices said the law could lead to “macabre” executions like one that happened in Oklahoma, where an inmate who was supposed to be made unconscious by a sedative writhed and gasped as lethal drugs were administered.
Q: How long have states executed people using lethal injection?
A: Texas was the first state to use lethal injection to carry out an execution in 1982. Georgia adopted that method in 1999, a year before the state Supreme Court banned electrocution. All states and the federal government now use the method.
But, states have begun running into problems with botched lethal injections, which is creating controversy about the method. Oklahoma, for instance, botched three in 2014.
Q: What is the U.S. Supreme Court case that may affect Georgia’s use of lethal injection as a method of execution?
A: One is Glossip vs. Gross out of Oklahoma, scheduled to be argued April 29. Some cogent questions are, do lethal injection drugs used in Oklahoma’s method cause pain and suffering and thereby violate constitutional protections against cruel and unusual punishment; and does that apply to other states.