Alternative drug sources for lethal injection spark new scrutiny

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Death row inmate Christopher Sepulvado has a little more than 90 days before he’s due to step into the death chamber. The conversation around exactly how the 70-year-old inmate dies, however, is arguably what’s keeping him alive.  

Sepulvado was scheduled to be executed by lethal injection at Louisiana’s Angola prison on Wednesday for the 1992 murder of his 6-year-old son. But a federal judge ordered a 90-day delay to “allow for additional time for review and responses to outstanding issues related to the execution,” according to a statement from the state's Department of Corrections on Monday.

The ruling came as a victory for Gary Clements, Sepulvado’s lawyer, who requested a stay of execution because the constitutionality of Louisiana’s two-drug method for lethal injection has come under fire.

Louisiana and dozens of other death-penalty states have been struggling to come up with new drug protocols for lethal injections. In the last four years, pentobarbital has been the preeminent drug for almost all of the lethal injections in the U.S. But In 2011, Danish drugmaker Lundbeck, uncomfortable with pentobarbital’s usage in the prison systems of 15 states, banned American prisons from acquiring it for the purpose of lethal injections.

With states’ pentobarbital supplies now almost dry, many prisons are turning to compounding pharmacies, which are not regulated by the Federal Drug Administration (FDA), to produce lethal drugs for executions. But fearful of negative public attention, a veil of secrecy surrounds companies that supply prisons with lethal injection drugs.

And it’s that lack of transparency, says Clements, that he and his client are battling.

“The secrecy just sort of covers up, draws a curtain and says, ‘No, you don’t need to look over here. It’s not important, move on,’” Clements told America Tonight. “And we’re saying no, its not that simple and that we need to see because we’re killing somebody in the name of the state of Louisiana and all of the citizens.”

After a federal court ordered Louisiana to disclose their execution plans, the state revealed it intended to use a combination of the sedative midazolam and the painkiller hydromorphone – the same lethal cocktail used in the controversial execution of Dennis McGuire in Ohio last month. 

The 53-year-old McGuire was convicted in 1994 for the brutal rape and murder of Joy Stewart, a pregnant newlywed, five years earlier.

“We believe there’s going to be a serious risk,” Clements said, “that there’ll be pain and suffering that is unavoidable that will be inflicted upon Mr. Sepulvado and it shouldn’t be.”

Pain and suffering is what McGuire’s family claim he endured in an “experimental” execution. They have filed a federal lawsuit to stop Ohio and other states from using the drugs on other condemned prisoners.

In an exclusive interview with America Tonight, the executed man’s son, also named Dennis McGuire, described what he witnessed after the lethal injection had been administered to his father. He said events took an unexpectedly dramatic turn after his father stopped waving goodbye to family members behind the glass.

“About 15 to 30 seconds after his left hand stopped waving, he took a real deep breath and both of his hands clenched in a fist,” the younger McGuire said.

From there, McGuire's son said, his father made “a very loud snoring sound.” Then, his father tried to lift himself off the table, arching his back and pushing his head and wrists against the gurney he was laying on. After that, McGuire, in an attempt for air, would grunt, his son said.

“It was extremely loud,” McGuire's son said. “While this was happening, the warden and the guard in the white shirt had horrified looks on their faces. And it appeared that they were in shock at the way that it was happening.”

Later, prison guards said McGuire told them one of his lawyers had asked him to put on a big show, but that he refused, a claim that Ohio officials could not substantiate.

Capital punishment advocates, however, shrug off any accusations of pain or suffering that condemned prisoners may experience during executions, weighing it up against that of victims. They say opponents are playing political games by focusing on lethal injection drugs.

“It’s mainly a political issue,” said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation. “People are putting pressure on compounding pharmacies not to supply the drugs even though there is no really good reason for them not to. It’s just a matter of people who don’t agree with the law looking for a way to obstruct its enforcement.” 

This is Sepulvado’s second stay of execution in his 20 years on death row. With Sepulvado’s execution being pushed back another 90 days, Clements will have another chance to positively establish whether the untested midazolam-hydromorphone drug cocktail will violate Sepulvado’s Eighth Amendment rights by subjecting him to cruel and unusual punishment through a painful execution.  

“Nobody is saying let’s let Christopher Sepulvado walk out of jail today," Clements said. "We’re not fighting the issue of whether he should have a death sentence or not. We are simply asking what the manner is, and that it should be done in a constitutional manner."