Since the state’s last execution more than 20 years ago, Colorado juries have mulled capital punishment, and advocates on both sides have debated the merits of its deterrent effect, its morality, its cost and any number of factors related to its application.
But amid nationwide controversy surrounding availability of drugs used for lethal injection, one other question remains: If necessary, would Colorado have the ability to perform a legal execution?
The short-term answer is no. Yet both sides of the capital punishment debate say that, despite efforts by manufacturers and others to restrict access to drugs used in lethal injection, Colorado could likely find a source if the execution process were to be set in motion.
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But both sides also agree that would almost certainly trigger a fresh round of legal challenges.
Colorado law not only mandates lethal injection, but also specifies use of a specific drug — sodium thiopental — that is no longer available on the open market for executions. The Colorado Department of Corrections said it would look to other states for that or an available alternative drug (it lists pentobarbital as a backup).
“Honestly, we don’t have a storage of lethal injection medications, and without the necessary drugs, we’d be faced with a significant issue,” DOC spokeswoman Adrienne Jacobson said. “If an execution had to be done today, this moment, no, we couldn’t do that. But we would take any steps we needed to take.”
She added that the statute presents other possibilities, including the use of a single-drug option rather than the state’s current three-drug protocol. The statute specifies that the DOC must use the anesthetic sodium thiopental “or other equally or more effective substance sufficient to cause death.” The other drugs administered according to Colorado’s protocol are pancuronium bromide (to cause paralysis and stop breathing) and potassium chloride (to stop the heart).
Just last week, Texas executed a prisoner with a single dose of pentobarbital. Last summer, Nebraska became the first state to execute a prisoner with fentanyl, a drug at the center of the nation’s opioid crisis.
Colorado Attorney General Phil Weiser’s office declined to respond to questions about legal issues surrounding the state’s lethal injection protocol, noting that it would have to advise or represent the DOC if such drugs became an issue. Weiser, while an opponent of the death penalty, has said he would defend the state’s capital punishment law.
Colorado’s only lethal injection execution occurred in 1997, when Gary Lee Davis was put to death for the kidnapping, rape and murder of Virginia “Ginny” May.
The state’s three death penalty cases currently underway, as well as the three men already on death row, would still be subject to capital punishment under the bill that legislators introduced on Monday, which would affect cases charged after July 1. But Gov. Jared Polis recently told Colorado Public Radio that if the legislature voted to do away with the death penalty, he would commute the sentences of death-row inmates.
George Brauchler, district attorney for the 18th Judicial District, where all three men facing death were convicted, noted that six years ago, the DOC made inquiries to see if the required lethal injection drugs might be available.
“There were at least two responses that yes, we could get you these drugs,” Brauchler said, adding that he suspects that’s the route the DOC would take in the future. “If (the drugs) don’t exist, they can certainly be compounded. It’s not like it’s moon-based titanium, where we couldn’t create more of it. I don’t think that’s a big issue.”
Brauchler said he hasn’t researched whether there is a substitute drug to sodium thiopental that Colorado could use under the law that a court would find sufficient.
“My guess is, if we try to come up with an alternative, that would stick us in litigation for a while, while the courts decide whether this other substance works,” he said.
Defense attorney David Lane, an opponent of the death penalty, agrees with Brauchler that the DOC probably wouldn’t have too much difficulty finding the necessary drugs, whether from some “mom-and-pop” compounding pharmacy or even directly from another state that performs lethal injections.
But he also agrees with the prosecutor that more legal challenges would follow.
“There’s not been any full-blown lethal injection litigation yet in Colorado because it hasn’t gotten to that point yet, but once we get there, there will be lethal injection litigation in Colorado,” Lane said. “But lethal injection challenges have generally failed across the country. There have been some exceptions, but the best way for Colorado to avoid all that is to abolish the death penalty, which should happen within the next month.”
Another issue factors into the mix: secrecy.
Statutes vary from state to state regarding the ability of government to conceal from the public the source of their lethal injection drugs. In Colorado, the ACLU filed suit in 2013 to force the DOC to provide details of its protocol — including where it obtained its drugs. But a judge ruled that the DOC did not need to do so.
The DOC released only a heavily-redacted document outlining the protocol.
“As I recall, I think that the useful piece of information that we got was just the difficulty DOC was having to go through to find the drug,” ACLU public policy director Denise Maes said. “Research we did separate and apart from the open-records request was that the substance itself was hard to find, hard to get.”
If Colorado tried to introduce a different drug, Maes said, the ACLU would likely take another stab at forcing the DOC to reveal details about its procedures.
“We certainly would take steps to bring attention to how the state is planning to execute one of its own people, so we’d probably do the same open records request, to find out where the state has gotten its drug from, what hoops it had to go through to get it, what it paid for it,” she said. “We’d certainly bring attention to that issue. I have no idea whether we’d have a legal claim to stop (an execution).”
Nonetheless, she said that even while the question of Colorado’s ability to perform a legal execution may not have immediate repercussions, it remains a critical issue to resolve.
“I think it’s an important reason to talk about why we should even have a death penalty if effectively you’ll never be able to carry one out,” she said. “…It’s much more cerebral to talk about costs, or how it doesn’t work as a deterrent, but how we actually execute people is super important.”
Robert Dunham, executive director of the Death Penalty Information Center, which takes no official position on the death penalty but has been sharply critical of the means by which it is carried out, notes that pharmaceutical companies’ resisting use of their drugs for executions have adopted distribution policies to prevent that, forcing states with lethal injection to turn to other sources.
“That has meant that states have had to obtain drugs either from compounding pharmacies or on the ‘gray market’ or subterfuge,” he said. “States that want to carry out the death penalty openly and honestly haven’t been carrying out executions.”
In 2011, sodium thiopental, used in medical practice as an anesthetic, was taken off the market by its sole manufacturer, Hospira, over concerns that it was being obtained and used against the company’s policy for executions in the United States. Hospira had moved production to Italy, Dunham explained, but then took it out of production because the drug’s use in executions could have subjected the company to liability issues in Europe, which does not use the death penalty.
“It’s not an economically viable drug, so you’re not going have companies coming in and generically producing it,” he said. “Nobody is going to go through the FDA approval process for something that’s going to have the limited purpose of executing prisoners.”
Ohio Gov. Mike DeWine recently halted all executions in his state after a federal judge in January criticized the use of midazolam, a sedative administered in Ohio’s three-drug protocol, as insufficient to render the prisoner fully unconscious. That led to concerns that administration of the subsequent drugs could cause severe pain. Testimony about botched executions in other states added to that concern.
Several states started using midazolam after sodium thiopental became difficult to obtain. Although the U.S. Supreme Court ruled 5-4 on an Oklahoma case in 2015 that use of midazolam is not unconstitutional, the Ohio judge said the ruling left open the possibility for proof that the drug might present “objectively intolerable risk of harm.”
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