An execution that went horribly wrong in Oklahoma will keep condemned killer Christopher Sepulvado alive through the football season in Louisiana. It even could have larger implications as state officials struggle to fix a broken death penalty process.
Legislators already have ruled out resurrecting the electric chair. The Jindal administration tossed out the possibility of nitrogen asphyxiation as a painless way to die. However, at the State Capitol, the consensus among both conservative and nonconservative legislators seems to be that the end of session is approaching too rapidly for a solution to emerge this year, raising the possibility that the state’s execution chamber could remain vacant until 2015.
Louisiana has not executed an inmate in four years, but the state planned to strap Sepulvado to a gurney this year and lethally inject him for beating and scalding to death his young stepson in 1992.
Thwarting Gov. Bobby Jindal’s efforts to implement Sepulvado’s death sentence are problems with obtaining the drugs needed to kill him. It’s a nationwide problem brought on by European drug manufacturers’ aversion to use of their products in executions.
In Oklahoma, Clayton Lockett mumbled and tried to lift his head more than 10 minutes after lethal drugs were pumped into his veins in April. Oklahoma used midazolam, the same drug Louisiana plans to inject into Sepulvado, and two other drugs.
One execution date already has come and gone for Sepulvado, amid challenges about using the controversial combination of the sedative midazolam and the pain medication hydromorphone to kill him.
In what Sepulvado’s attorney called “a promising step,” the Jindal administration has agreed to push back a June court hearing on the drug challenges until November. The administration said the delay was necessary “as the Legislature considers alternative methods of execution and as the Department (of Public Safety and Corrections) is reviewing the most effective dosage levels for the drug protocol.”
Exactly what the administration expects the Legislature to do is unclear. Legislative leaders said they aren’t considering alternative methods.
At the administration’s request, House Criminal Justice Committee Chairman Joseph Lopinto — a former law enforcement officer — dropped his bid to bring the electric chair out of retirement. All that’s left, he said, is legislation to make the source of execution drugs a secret.
Lopinto, R-Metairie, said legislators lack the time this year to explore alternatives to lethal injection. The session ends June 2.
“This is too important of an issue and too big of an issue to try to do something with three weeks left in the session,” he said.
Senate Judiciary B Committee Chairman J.P. Morrell, D-New Orleans, said the only measure he has afloat is to look at the costs associated with the death penalty. “We’re not looking at alternatives,” he said.
Both Lopinto and Morrell agree that state Corrections Secretary Jimmy LeBlanc is in a difficult position. LeBlanc is tasked with carrying out death sentences with limited tools in his arsenal.
Unlike his counterparts in other states, LeBlanc faces restrictions on ordering drugs through a compounding pharmacy that creates personalized prescriptions. The push to shroud his death-penalty drug shopping in secrecy stems from a fear that the seller will get pushback from the drug manufacturers and cut off the supply line.
LeBlanc procured the midazolam-hydromorphone combination after being unable to purchase the pentobarbital used in previous executions. The combination was used for the first time in an Ohio execution Jan. 16. News reports indicated it took Dennis McGuire 25 minutes to die. He allegedly struggled, gasped, snorted and choked for 10 minutes.
The June court hearing was supposed to explore concerns raised by Sepulvado’s attorneys about the new drug procedure. A meeting Wednesday in a federal judge’s chambers put the trial on hold.
Sepulvado’s attorney, Mercedes Montagnes, said: “Given the heightened concerns about secrecy and experimentation in the use of lethal injections nationally, the Department of Corrections has taken a promising step to avoid the sort of botched executions in Louisiana that we have seen recently in Ohio and Oklahoma.”
At the national level, the U.S. Justice Department began a review of execution procedures after seeing what happened in Oklahoma. Lockett died of a heart attack within an hour after his execution was halted.
LeBlanc admitted to legislators at a committee meeting earlier in the session that it’s become virtually impossible to carry out executions because of the difficulty in obtaining the drugs needed. In Louisiana, the only allowable method for executions is lethal injection.
At that same committee meeting, LeBlanc mentioned the possibility of nitrogen asphyxiation, citing NASA employees who accidentally walked into a chamber filled with nitrogen. The employees quickly were rendered unconscious, and two eventually died.
Michael Rushford, founder, president and chief executive officer of the Criminal Justice Legal Foundation, said inert gas — including nitrogen and carbon monoxide — is widely available and painless. The foundation is a nonprofit organization that focuses on improving the administration of criminal justice.
“Executions using these or similar gases would be quite boring but 100 percent effective,” Rushford said.
He said he gets phone calls from anesthesiologists asking why no one is using inert gas as an execution method. He said all that’s required is a mask, a tube, a tank and a valve.
“Government bureaucracies are difficult. I think it may well be that it hasn’t popped into anybody’s head yet in a legislature,” Rushford said, referring to why no state has embraced the method.
Lopinto said he instructed LeBlanc to do some case-law research on the issue and report the results next year. Still, Lopinto is hesitant.
“No other state does it. I’m not proposing that we be the first,” he said.
Morrell, who freely admits he would be fine with eliminating the death penalty entirely, said he is concerned about the hit to the state’s treasury if Louisiana botches an execution the way Oklahoma did. He said Louisiana doesn’t need the financial liability.
“Unless there’s a definitive national solution ... we should absolutely not be executing people right now,” Morrell said.