The ACLU of Colorado filed a lawsuit Tuesday morning contending that the state's secretive death penalty protocols violate the public's right to know.
The lawsuit seeks to compel the state's Department of Corrections to reveal its communications with pharmacies regarding what drug or drugs will be used to carry out the execution of convicted death row inmate Nathan Dunlap.
“By refusing to disclose the details of the execution procedure, including the drug or drugs that may be used and how they are obtained, as well as information about the companies that may be supplying the chemicals, CDOC infringes, without adequate justification, on the public’s legitimate right to information about how its government operates with regard to one of its most serious undertakings,” said ACLU of Colorado Legal Director Mark Silverstein.
Last month the CDOC sent a letter to compounding pharmacists requesting “sodium thiopental, pentobarbital, pancuronium bromide, potassium chloride, or similar drug or drugs that the CDOC can purchase” in preparation for what may be the state's first execution in over 15 years. Colorado has only put one man to death in the past 45 years.
The letter had been sent by then-CDOC Director Tom Clements to 97 compounding pharmacies in the state just before his death in March, and was prompted by the rejection of Dunlap's appeals to the U.S. Supreme Court.
"For the first time since 1997, the CDOC is facing the task of carrying out an execution," Clements wrote in the letter. "I am reaching out to compounding pharmacies throughout the state of Colorado in order to comply with state law that the CDOC acquire sodium thiopental or other equally or more effective substance to cause death."
In 2011, shortages of sodium thiopental, an anesthetic were reported since its American manufacturer, Hospira, announced it would stop producing the drug and European manufacturers said they would not supply the drug if its planned use was to carry out executions.
The ACLU expressed concern in its lawsuit that since the CDOC has been keeping their execution protocol on a "need-to-know basis," that the department may be planning a three-drug "cocktail" method that has come under scrutiny for its risk of causing excruciating pain and suffering and for its record of botched executions in other states.
From the ACLU news release:
In the three-drug approach, a non-lethal dose of an anesthetic or barbiturate, such as sodium thiopental, is administered first. That is followed by a paralytic, like pancuronium bromide, and then potassium chloride to cause death by cardiac arrest. However, when the initial anesthetic does not function properly, the inmate experiences tremendous pain while paralyzed and unable to move, breathe or communicate.
In 2006, California halted executions after a federal judge found “substantial evidence” that in more than half of the state’s lethal injection executions, the level of the anesthetic drugs was inadequate to induce anesthesia, leading to a death that is “so painful that it offends the 8th Amendment ban on cruel and unusual punishment.”
Under Colorado's lethal injection law, the state must apply a "continuous intravenous injection of a lethal quantity of sodium thiopental or other equally or more effective substance sufficient to cause death" within the week of Aug. 18, the time frame set by an Arapahoe County judge.
The ACLU's complaint also mentions that the Colorado Board of Pharmacy Rules of Professional Conduct prohibits “any practice which detrimentally affects the patient.”
“If compounding pharmacies in Colorado plan to participate in Colorado’s next execution, the public has a right to know,” said Silverstein, “and the State Board of Pharmacy might be interested in investigating whether pharmacies violate their license and state rules when they supply a drug for the express purpose of killing rather than healing.”
Dunlap's attorneys are also challenging the constitutionality of the death penalty, arguing that it's cruel and unusual punishment to make inmates wait on death row for decades for a possible execution date. The judge set a June 10 hearing to hear Dunlap's attorneys' arguments.
His attorneys have also already tried to acquire the state's death penalty protocols, but it focused its argument on the allegation that the DOC violated state laws by drafting the rules without public input.
Earlier this year when a bill seeking to repeal the death penalty in Colorado failed, the the ACLU of Colorado also called its use in Colorado "unfair" and has said that they are "committed to "being a catalyst for that conversation until the death penalty is ended in Colorado once and for all."