San Francisco – A California state court ordered the California Department of Corrections and Rehabilitation (CDCR) Tuesday to produce records relating to its acquisition of sodium thiopental, a controlled substance used as part of California's lethal injection protocol for executing death row inmates.
The ACLU of Northern California filed suit on November 17, 2010, after the CDCR had failed to produce any records in response to a California Public Records Act (PRA) request that the ACLU of Northern California submitted on October 7, 2010. The request asked for basic records relating to the CDCR's acquisition, use, and destruction of sodium thiopental, including copies of the packaging and inserts that came with the drug and instructions for use. Though the CDCR admits the public has a right to examine at least some of the records about its order of the lethal drug it has failed to produce any of the documents over the course of nearly two months. Just days ago, the Department revealed that it had placed a bulk order for 521 grams more of the substance, to be delivered this week, while still hiding from the public records that would reveal the source and the cost to the taxpayers.
"Our Constitution states that we, the people of California, have the right to information concerning the conduct of state business," said ACLU of Northern California Staff Attorney Michael Risher. "When the business at hand is execution, there could hardly be a more compelling argument for transparency."
San Francisco Superior Court Judge Charlotte Walter Woolard ordered the CDCR to disclose by Tuesday, December 7, all records that the CDCR agrees must be made public. The Judge also ordered the CDCR to provide a log of all documents withheld from the initial production and an explanation for holding back any such records by Friday, December 10. A hearing on the withheld documents will be held Tuesday, December 14 at 9:30 a.m. at 400 McAllister Street, Dept 302.
"We are pleased with this result. The CDCR is trying to take California taxpayers on a bizarre ride and today the court hit the brakes," added Natasha Minsker, Death Penalty Policy Director at the ACLU of Northern California, who filed the initial request. "This kind of secretive and illegal behavior by the government is one reason California taxpayers support replacing our ineffective death penalty system with life in prison with absolutely no possibility of parole."
In late September, the CDCR asked the courts to allow it to conduct an execution before the end of the month because its supply of sodium thiopental was about to expire, claiming it would be unable to obtain any more of the drug before 2011. Then, on October 6, the CDCR suddenly announced it had obtained a new supply with an expiration date of 2014, but did not explain how it had done so, who sold the drugs, what process was followed to acquire them or how much it paid for them.
The last batch made by the sole US-based manufacturer, Hospira, dates back to 2009 and carries an expiration date of 2011. It is unclear if the CDCR paid an exorbitant price for the scarce substance, if it obtained the sodium thiopental from a foreign source in violation of US law, or even if the substance in their possession is in fact the same as the drug made in the US.
In related news, United Kingdom officials have moved to stop the export of sodium thiopental, observing that it is illegal to import of non-FDA approved drugs into the US. Large amounts of non-FDA approved sodium thiopental from the UK have already been imported into the United States for the purpose of carrying out executions.