Lethal Injection Drug Sources: Is Texas Source Besse Medical Replacing Hospira or Not?

On Tuesday, we learned the Associated Press had used the power of the press last week to discover that Besse Medical had been the supplier of sodium thiopental to Texas for use in its executions.  Good work, AP. 

The State of Texas fought to keep the identity of its new supplier secret - purportedly to protect the employees of Besse Medical from danger and things like that.  (The irony is not lost that there was a fear that those opposing the death penalty might cause the death of these workers.)

Meanwhile, most of the news stories are still rehashing Hospira's exit from the marketplace.  And the Texas Tribune has an interview with a representative of the Texas Department of Criminal Justice by the name of Michelle Lyons.  Seems that Ms. Lyons told the Texas Tribune that Texas would "...explore some other options." 

Was Ms. Lyons of the Texas Department of Criminal Justice being wily when she answered this question on the same day that the Associated Press released its open records revelation that Besse Medical has been selling sodium thiopental to the State of Texas for awhile now? 

There's been no subsequent press release from the Texas DCJ on this issue.  No news release from Besse Medical, either, as of the date of this post. 

Is Texas going to be supplied in the future by Besse Medical or not? Is Besse Medical going to be supplying other states (recognizing a market need without any competition and an apparent acquiesence in selling a drug that will be used in executions)?

We're wondering about this.  So we're posting this today, and sending a copy of this post to Brandi Grissom of the Texas Tribune, who wrote the article, "TribBlog: Texas Seeking Execution Drug," and quoted Ms. Lyon in her story.  We're also copying Ms. Lyons with this post, and Besse Medical, as well. 

We'd appreciate our confusion here being cleared up. 

And we invite either Ms. Lyon or Ms. Grissom to comment or write a guest post here, as well as a representative of Besse Medical, should they chose to do so.

We'll keep you posted.

Hospira's Web Notice Discontinuing Execution Drug Has Global Implications - But Will Executions Stop? No: Meet Besse Medical of Ohio

On January 21, 2011, via its website, Illinois drug manufacturer Hospira, Inc. fired a shot heard 'round the world as it announced in a short and sweet press release that it would no longer be making sodium thiopental (product name, Pentothal™).  According to Hospira:

Hospira had intended to produce Pentothal at its Italian plant. ... [W]e cannot take the risk that we will be held liable by the Italian authorities if the product is diverted for use in capital punishment. Exposing our employees or facilities to liability is not a risk we are prepared to take.

In short, the Italian government was not pleased that the American drug company was going to be making a drug used in executions not on American soil, but on Italian, and said so.  Italy would not allow any sodium thiopental made at a plant within its border to be exported out of the country unless Hospira could guarantee it would not ultimately be used to kill people, and be willing to be liable to the Italian government for any executions that might slip past Hospira's watch.  (What a warranty, right?)

Hospira chose to forego making the product at all.  Hence, the press release last week and the firestorm that has resulted. Because, as we know, this comes on the heels of a major shortage of the drug that has impacted state death rows for over a year now. 

What happens to state executions schedules now?  

When Hospira announced a delay, some states just stayed their execution schedules.  Others tried to move forward with alternatives.  For example: 

  1.  Ohio went for a single-drug lethal injection method. 
  2. Oklahoma substituted pentobarbital in their three-drug cocktail, the same drug that is used to euthanize dogs and cats
  3. Arizona went overseas to buy more product.

Florida, and other states, could follow any one of these three examples.  Or, as the Miami Herald points out, Florida can always return to another form of execution that is still legally viable: the electric chair

Other forms of execution that are still legal alternatives include the firing squad; hanging; and the gas chamber.  (For which states allow which method, please refer to our earlier post.)

Global Response: Try to Use Marketplace to Halt American Death Penalty

Yesterday, Germany announced it will not allow the export of sodium thiopental to the United States.  Since Arizona's supplier was from Great Britian, Germany's announcement does not carry that much power in the market. 

Meanwhile, Texas reveals it has a domestic supplier - Ohio's Besse Medical.

It took the Associated Press using the Open Records Act to gain access to this information, but it has been revealed that Texas has a source of execution drugs here in the United States (although Texas worked hard to keep this information to itself). 

Besse Medical is a domestic supplier of sodium thiopental.  Now. 

So, while Hospira's press release  may be getting lots of attention, it's not the biggest news.  Besse Medical is just stepping into the gap, and apparently has been doing so for awhile now.

Texas Kills Trial Judge's Attempt to Challenge Death Penalty

Across the country, a lot of attention has been given to Kevin Fine, a trial court judge setting in Houston over a state criminal court.  Texas has lots of criminal courts, and Houston's Harris County has a number of folk presiding over the criminal bench -- but Judge Fine has become somewhat famous from that number because he had the temerity to take on the powers that be when he granted a single defense request for an evidentiary hearing in a pending murder case. (Actually, Judge Fine had first turned heads when he issued a ruling in the Green matter that the death penalty was unconstitutional, but he later nixed that decision and went forward on the hearing request.)

That single order, allowing a hearing to proceed, has been big news for awhile now. Why?

Judge Fine was going to allow the defense attorneys for John E. Green, Jr., to present evidence that capital punishment - as it is applied in Texas today - is unconstitutional.  In fact, Judge Fine actually began presiding over that hearing before being stopped in his tracks by a higher court: the Texas Court of Criminal Appeals.  Seems that the prosecution had seen fit to request the appellate court's intervention in the proceedings, and the district attorney's request was granted.

For a time, all eyes moved from Houston to Austin, where the highest criminal court in the state would decide on whether or not John Green's challenge to the death penalty request made in his case was constitutionally valid.

It was a big opportunity to address the realities of the death penalty in a state where Cameron Todd Willingham was executed (almost everyone agrees now that this was an innocent man who died) and where more executions occur annually than any other state in the nation.  A number of legal notables thought the Green petition provided such a window of opportunity that they filed an amicus brief in support of the state's capital punishment review.  People like former Texas governor Mark White and former Indiana governor Joe Kernan. 

This month, the Texas Court of Criminal Appeals ruled.  In an opinion written by Justice Cathy Cochran, the state's highest criminal court ruled that Judge Fine had no legal right to proceed, and the district attorney's petition was conditionally granted.  From the January 12, 2011 opinion(s)(Cause Nos. AP-76,470 & AP-76,471):

Because there is no basis under Texas law to conduct a pretrial evidentiary hearing to determine the “as applied” constitutionality of a state penal or criminal procedural statute, we conclude that the trial judge does not have legal authority to conduct any such pretrial evidentiary hearing and make any such pretrial declaratory judgment. He is acting beyond the scope of his lawful authority. Therefore, the State has demonstrated a clear right to relief. We conditionally grant mandamus and prohibition relief and, if he does not do so himself, will order the trial judge to dismiss Mr. Green’s “Amended Motion to Declare Article 37.071, § 2 of the Texas Code of Criminal Procedure Unconstitutional As Applied” as requesting an unauthorized declaratory judgment.

John Green will now proceed to trial with the possibility of a death sentence

And, those who are concerned about the justice found in Texas' current system of capital punishment must look for another battlefield.  Perhaps that new front lies in appellate review of Mr. Green's case, should he be convicted and sentenced to death: an opportunity that many - including Mr. Green and his defense counsel - hope does not present itself. 

One must wonder how the pending appellate challenge to the system that Green's case might provide is impacting the prosecution's strategy right now .... Surely they must be concerned about winning the battle and ultimately losing the war?

Introducing Reba Kennedy, Lawyer/Writer

Since the inception of this blog, I have enlisted the services of Texas attorney and writer Reba Kennedy – not only because I don’t have the luxury of a set weekly schedule as a trial lawyer, but also because Reba understands things that I do not: using hypertext (what?), optimization for the search engines, all those web writing details. We’re both AV-Preeminent rated attorneys, so she understands the law part, but as a professional writer she also understanding things about blog writing that I don’t (and probably never will).

Reba and I are now in the midst of writing a book together dealing with indigent defense issues in capital cases which our publisher hopes to have available before the end of 2011. We’re also beginning to co-author magazine articles dealing with various aspects of capital punishment in the United States today.

It’s a new year. With this working collaboration, coupled with my trial schedule and growing commitment to my non-profit corporation, the Florida Capital Resource Center, we’ve agreed it is best if Reba becomes a recognized contributor to the Death Penalty Blog as of January 2011.

Rest assured that I’m not abandoning ship here. This remains Terry Lenamon on the Death Penalty. The only change is that Reba’s always been around, behind the scenes – she’s taking a more visible and active role now.    

Please make her welcome!


Is Illinois Governor Pat Quinn Reading the News? Maryland Movement to Rev Up Executions, While Some in New Jersey Seek to Reinstate Death Penalty

We're all still waiting to see whether or not Illinois Governor Pat Quinn will sign into law the proposed legislation on his desk which would abolish capital punishment in that state.  You can almost hear the sound of a thousand fingernails drumming impatiently on tabletops across the country ....

Meanwhile, over in Maryland it's a different ballgame.  The President of the Maryland Senate, Democrat  Thomas V. Mike Miller Jr., has told the media that he's working toward Maryland doing what's necessary regulation-wise so Maryland can start executing again. Right now, the death penalty is sought in Maryland courtrooms, but executions have been halted by the state's high court for over four years now due to concerns over lethal injection procedures. 

And in New Jersey -- which abolished the death penalty in 2007 -- there's a continuing movement by some to reverse that decision and reinstitute capital punishment in New Jersey.  The latest has been three (3) capital punishment bills proposed by GOP state senators in New Jersey, their position getting further support in the public outrage at the shooting death this month of Lakewood township police officer Christopher Matlosz

So, Democrats in Maryland's state house and Republicans in New Jersey's legislature are all pushing for capital punishment in their states.  What message does this send to Governor Quinn, in politician-speak?  We'll find out soon enough.

Will Governor Pat Quinn End Capital Punishment in Illinois? We'll Soon Know.

On Tuesday, the Illinois State Senate sent a bill to the governor's desk which will abolish the death penalty in that state ... if Governor Pat Quinn will sign it.

Problem is, Governor Pat Quinn supports capital punishment.  The next day, instead of signing the bill into law, Governor Quinn reported that he would listen to every argument - as well as his own conscience - before deciding what to do.

However, he has acknowledged that Illinois has a history of "serious problems" with the death penalty, and that if efforts had not been undertaken to clear the names of innocents who had been convicted in Illinois courts, that "terrible tragedies" could have occurred. 

As we've discussed here often, money seems to be a growing factor in these debates. 

Progress Illinois interviewed Rob Warden, the executive director of the Center for Wrongful Convictions at Northwestern University's Law School, reports that over the past decade Illinois has spent $120,000,000 from the Illinois Capital Litigation Trust Fund on a total of 20 capital cases. 

Under the proposed legislation, these monies would go towards police training and funds supporting the families of homicide victims.  Warden's position to Progress Illinois:  "I can't imagine how any fiscally conservative person can favor this system."

Many still want to have capital punishment as an option.

Meanwhile, Chicago Mayor Richard Daley has put his two cents worth into the fray:  he's told the press that he's all for the death penalty.  The Gallup Poll is being referenced often, with its numbers showing that the majority of Americans approve of the death penalty -- and there's also the point being made that the majority of states do allow for capital punishment (as does the federal system and the U.S. Military).  

Some are pushing Illinois as being an example for the country on what to do about the death penalty, suggesting that other states will follow Illinois' lead should Governor Quinn sign this bill into law. 

However, this may or may not be the case. Illinois is in dire financial straits, and this week Governor Quinn already okayed a massive increase in state income taxes.   You can imagine that the folk of Illinois are none too pleased about this decision - no matter if state legislators believe they had no option what with a budget over $15 billion in the red and bills setting there for six months, unpaid. 

Governors are politicians.  On the heels of this unpopular tax decision, will Quinn be proactive enough to sign the controversial death penalty bill into law? 

We're voting no.  The easier road is to keep the status quo, capital punishment-wise, and then hold fast to the moratorium against executions that has been in place for Illinois these many years. 

Jared Loughner Facing Federal and State Death Penalty Charges: Indigent Defense Appointments Made for Death Qualified Counsel

Jared Loughner is accused of violating federal laws that carry with them the death penalty, and he's already been charged with capital murder in a Phoenix federal courtroom.  (Read the federal indictment here.) Arizona law has also been violated in this horrific crime, and the State of Arizona is planning its own separate prosecution of Loughner for capital crimes in violation of state law.

It's not two bites at the apple. 

No, it's not double jeopardy because there are separate crimes, in separate jurisdictions.  The fact that lots of money is going to be spent in this media-intense case in two systems as efforts are made to sentence this man to death seems to be acceptable to both prosecutors.  Two bites at the apple arguments aren't legally valid here. 

Meanwhile, while lots of media attention is being given to the attempted murder of Congresswoman Giffords, the assassination of federal judge John Roll should not be discounted.  It's not often that federal judges are killed in the line of duty, and federal prosecutors will be fierce in their efforts here. 

However, given the state of capital punishment today it may well be that Arizona has a better possibility of a death sentence for Loughner under Arizona law, where he undoubtedly will be tried for the death of a 9-year-old child.  This may be the stronger death case, from a prosecution perspective. 

Death Penalty Sought By US Attorney and Arizona Prosecutor Is a Given

In fact, it is so immediately clear that the death penalty will be sought by the U.S. Attorney that the federal public defender already moved the court to appoint death-qualified indigent defense counsel to the case.

High Profile Death Qualified Defense Counsel Appointed

His request was that these defense attorneys be appointed from outside of Arizona, not only because the public defender's office was not available to take the appointment but also because every other death-qualified Arizona defense attorney either had a conflict of interest in representing Loughner or they turned down the representation.  Accordingly, the federal PD moved for the appointment of California defense attorneys Judy Clarke and Mark Fleming to be appointed by the judge.

Clarke has already appeared in court for Loughner.  She is a litigator experienced with this level of trial-by-media case having already represented Ted Kaczynski, the Unibomber;  and Susan Smith, the South Carolina mother who committed filicide, killing her two small boys by driving her car into a lake.  None of her high-profile clients (see the USA Today list) has been given the death penalty. 

And while the Arizona process is a step behind the federal system (as the state systems always are), it is to be expected that Jared Loughner will soon appear in a Phoenix courtroom again, this time for a state proceeding where it's likely that indigent appointments will once again be for his current defense counsel to represent him in the state proceedings. 

There's no one better than Judy Clarke -- good luck to her in this massive undertaking.

Illinois May Abolish Death Penalty in 2010 - The Perfect Storm for a Finance Challenge to Capital Punishment

As the first week of 2011 unfolds, the Illinois Legislature is facing a huge budgetary crisis: it is $13 billion in the red, and this includes over $6 million of unpaid bills.  If Illinois were a person, it would be getting a lot of bill collector phone calls. 

In fact,Illinois is in very, very bad financial straits: its credit rating ties with California as being the lowest in the country, and Moody's Investor Service gives Illinois a negative rating on its financial forecast.  Which means things are very bad up Chicago way, and the Illinois Legislature has some very difficult budget decisions to make.  Things like cutting child care, increasing tuitions. 

Which brings them to the death penalty. 

The Illinois House has a bill before it, moving to abolish the death penalty.  Of course, there is growing opposition - particularly among prosecutors.  They are planning a big press conference this week - and the state attorneys are working hard, drumming up public support for keeping things status quo, capital punishment-wise.

Meanwhile,opponents of capital punishment are telling the media today that they think they have the votes to make the bill into law.  There's a window of opportunity for the bill to pass which changes later in the month.

This is politics - and politics in the state where Chicago resides - so only time will tell whether or not abolishing the death penalty will indeed happen in the State of Illinois, no one is considering this as anything but a fight at this juncture.

The Perfect Storm for a Finance Fight

However, given the dire straits that the State of Illinois faces, if there is ever a situation where financial arguments could kill the death penalty, this may be it.  The Perfect Storm may exist in Springfield, Illinois, this month. 

Currently, there are 10 people on Illinois Death Row.  However, the Illinois Governor imposed a moratorium on executions in the state, so executions are not occurring.  Prosecutors are free to seek the death penalty in their cases, of course: that hasn't changed. 

Let's see what happens. 

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