Death row inmates challenge use of death penalty drug

McClatchy NewspapersMarch 22, 2013 


The lethal injection chamber at San Quentin State Prison

WALLY SKALIJ — Los Angeles Times/MCT

— Daniel Wayne Cook sexually assaulted, tortured and killed two men, a jury agreed. He’s dead now, executed last August in an Arizona prison.

But Cook’s name lives on, as part of a lawsuit challenging the Food and Drug Administration’s allowing importation of a drug used in executions by injection.

Death row inmates in California and several other states are now carrying on the challenge first filed under Cook’s name, though of course none will be present Monday when a top appellate court debates the case that’s one of many attacking lethal injection.

“They’re trying to conduct this war on as many fronts as possible,” said Kent Scheidegger, legal director for the Sacramento-based Criminal Justice Legal Foundation, a nonprofit public interest law group. “I think this one is important for the way the inmates went after the death penalty by suing the FDA.”

Scheidegger, a death penalty supporter, filed a friend-of-the-court brief that prompted additional questions from the U.S. Court of Appeals for the District of Columbia Circuit. A three-member appellate panel of the court will hear oral arguments Monday in the lethal injection drug case.

The inmates argue that the FDA acted improperly in 2010 when it allowed some state prison systems to import foreign-made sodium thiopental for use in executing prisoners. Though states have since been substituting other drugs for the fast-acting sedative, the legal challenge continues with the potential to reach even beyond the death penalty realm.

“This case is not about halting executions, but about ensuring that illegal drugs are not used in carrying out otherwise legal executions,” attorney Eric A. Shumsky, who represents the death row inmates, said Friday.

In turn, the appeal being heard Monday is only part of a much broader set of challenges to how executions occur in the 35 states that, along with the federal government, currently use lethal injection. Some of these larger issues have reached the Supreme Court, and others may get there eventually.

In a 2008 Kentucky case involving convicted cop killers Ralph Baze and Thomas Clyde Bowling Jr., the Supreme Court upheld the state’s use of a three-drug lethal injection combination that included sodium thiopental. Baze and Bowling, sentenced to death for murdering two Powell County deputy sheriffs, had unsuccessfully argued that the three-drug injection amounted to cruel and unusual punishment because of the risk for errors.

As states shift to other drugs, said Richard Dieter, executive director of the Death Penalty Information Center, a nonprofit death penalty information and research group, they now face “quite a few challenges” questioning other elements, like where the drugs come from.

“Every aspect of California’s lethal injection protocol is being litigated,” said Terry Thornton, spokeswoman for the California Department of Corrections and Rehabilitation.

In the three-drug protocol long employed by many states, sodium thiopental induces general anesthesia. Another drug paralyzes the condemned inmate, and the third stops the heart.

A domestic manufacturer stopped producing sodium thiopental in 2009, prompting states, including Idaho, Kentucky, Missouri and Texas, to switch to a different drug protocol. California, Tennessee and Arizona decided, at least initially, to import the sedative.

Arizona has since switched to using one drug, and California Gov. Jerry Brown last year ordered state prison officials to consider making the same move. Thornton said Friday that review is still underway.

Last year, a Washington-based federal judge ruled that the FDA should not have permitted importation of a drug not approved for domestic use. In response, California officials denounced the ruling as “contrary to law” and federal officials contended they were acting with appropriate administrative leeway.

“FDA exercises enforcement discretion in the context of drug importation in a range of circumstances, a practice that has repeatedly been brought to Congress’s attention,” Justice Department attorneys said in a legal brief.

Like many of the death penalty cases, the case being heard Monday brings together different worlds in sometimes jarring juxtaposition.

Robert G. Fairbank is one of 20 death row inmates currently named in the lawsuit. He pleaded guilty to killing San Francisco State University graduate student Wendy Cheek in December 1985. Cheek had been beaten, stabbed and set on fire. Her body was buried in a shallow grave in the foothills of San Mateo County, south of San Francisco.

Fairbank later tried unsuccessfully to withdraw his guilty plea, saying he issued it when he was still hung over from drinking jailhouse brew.

Shumsky, the appellate attorney, is a partner with the prominent firm Sidley Austin, which is handling the case pro bono. The case particulars, moreover, do not deal at all with what Fairbank and the other inmates did or didn’t do.

Instead, lawyers are arguing over technicalities, like what Congress meant by the word “shall” in the statute defining the FDA’s authority. It sounds dry, but it’s crucial. Beyond its application to the lethal injection question, the eventual appellate ruling could shape future administrative challenges in other agencies, as well.

“The case also is important because of what it means for federal agencies that disregard federal law,” Shumsky said. “Congress said clearly that drugs like these should be excluded from the country, but FDA claims to have unfettered discretion to let them in.”

Email:; Twitter: @MichaelDoyle10

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