The Georgia Department of Corrections circumvented federal law in trying to quickly secure a scarce drug used in lethal injections, according to a letter asking the U.S. Department of Justice to investigate.
The request was made in a letter to U.S. Attorney General Eric Holder by a lawyer representing a death row inmate from Cobb County. The letter quotes records the state provided.
“The Georgia Department of Corrections appears to have violated the federal Controlled Substance Act,” John Bentivoglio, a former associate deputy U.S. attorney general in Washington, wrote in a letter Thursday.
Bentivoglio describes extraordinary steps Corrections took to get the sedative thiopental, a scheduled III non-narcotic controlled substance, when a shipment for several states, including Georgia, was held by U.S. Customs in Memphis last summer.
The letter said Corrections is not registered with the federal government to import drugs and the agency did not “submit a declaration to the Drug Enforcement Administration when GDC imported thiopental last year.
“The GDC’s actions call into question the legality and integrity of the process the department uses to administer lethal injections,” Bentivoglio wrote. “Given these potential violations of federal law and the implications they raise with respect to pending executions in Georgia, I respectfully urge you to direct appropriate agencies within your department to conduct a prompt and thorough investigation of these issues.”
The Department of Justice declined comment Thursday afternoon.
No inmates are currently scheduled for execution in Georgia.
Corrections said in an e-mail the agency had “just received the letter sent to the U.S. attorney general. A statement will be provided once the department has an opportunity to fully review it. There is no time frame available for when that statement will be issued.”
Like many states that execute criminals, Georgia uses a three-drug cocktail. The first one is a sedative. The second drug paralyzes the inmate. The third drug stops the heart.
But thiopental, the sedative, has been in short supply nationwide because companies in this country and abroad have refused to provide it if it is going to be used in an execution. Several states have had to delay executions because the drugs they have in stock had expired. In Georgia, that same concern has been raised in two scheduled executions, the death of Emmanuel Hammond Jan. 25 and the delayed execution of Roy Willard Blankenship in February.
Bentivoglio is representing Andrew Grant DeYoung, convicted in Cobb County of the stabbing deaths of his parents and 14-year-old sister in 1993. No execution date has been set.
Bentivoglio said he's seeking the federal probe because illegally imported thiopental "may be adulterated, counterfeit or otherwise ineffective" in providing sedation.
Last month, the attorneys general from 13 states – but not Georgia – asked U.S. Attorney Eric Holder for help securing the sedative.
“Sodium thiopental is in very short supply worldwide and, for various reasons, essentially unavailable on the open market,” according to the letter. "For those jurisdictions that have the drug available, their supplies are very small – measured in a handful of doses. The result is that many jurisdictions shortly will be unable to perform executions in cases where appeals have been exhausted.”
According to Bentivoglio's letter sent Thursday about the Georgia case and the accompanying documents, state prison officials became anxious when Customs officers in Memphis held a large shipment from Dream Pharma Ltd., a London company, when it arrived last June 28. The shipment was held pending the Food and Drug Administration's approval.
On July 14 the director of procurement for Corrections asked Dream Pharma in an e-mail if the state could buy thiopental directly from the business. Dream Pharma said it could.
An assistant commissioner told the procurement chief to “make it happen. Get a good quantity but ensure it has an extended shelf life!” according to the letter.
Correction wired Dream Pharma $340.41 on July 21 for 50 vials of thiopental to be shipped to the Georgia Diagnostic and Classification Prison in Jackson, which is the location of Death Row. According to the attorney, Corrections documents show the invoice and the shipping label “identified the contents as ‘pharmaceuticals not restricted.’”
"It does look like they did an end-run around the requirements,” Bentivoglio told The Atlanta Journal-Constitution. “They were either negligent in not knowing their responsibility or it was purposeful. Either way, on the face of it, it looks unlawful.”
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