State tells judge of change in lethal injection formula

State corrections officials announced through their attorneys in Baton Rouge federal court Tuesday that they have replaced a three-chemical lethal injection formula with a single dose of pentobarbital.

U.S. District Judge James J. Brady had called a hearing on the three-chemical formula because of concerns over the possibility of agonizing deaths that were raised by attorneys for two death row inmates. One of those inmates is scheduled for execution Feb. 13.

In a related development, a spokesman for Gov. Bobby Jindal said his boss will not grant a request by the Louisiana Conference of Catholic Bishops to postpone that execution until after Ash Wednesday. The bishops also suggested Monday that convicted murderers could be sentenced to non-lethal punishment, such as imprisonment for life.

Scheduled for execution next week is Christopher Sepulvado, 69, of DeSoto Parish. Sepulvado received his death sentence after a jury trial for the 1992 beating and scalding murder of his 6-year-old stepson, Wesley Allen Mercer.

“The trial was handled appropriately,” Sean Lansing, Jindal’s press secretary, said in an email Tuesday. “The punishment decided on by a jury of Mr. Sepulvado’s peers is proportional to the crime he committed. The governor sees no reason to intervene in this case.”

Gary Clements, director of the Capital Post-Conviction Project of Louisiana, and attorney for Sepulvado, expressed surprise over prison officials’ announcement of the change in their lethal-injection formula.

Clements filed suit against the Louisiana Department of Public Safety and Corrections last month in 19th Judicial District Court in Baton Rouge in an effort to force release of state records related to the three-chemical lethal-injection formula. State District Judge William Morvant has scheduled a hearing in that case for Friday at 1:30 p.m., court records show.

Pentobarbital was not one of the three drugs used to execute Louisiana inmate Gerald Bordelon in 2010 for the strangulation of his 12-year-old stepdaughter. Sodium thiopental put Bordelon to sleep before pancuronium bromide paralyzed him, and potassium chloride stopped his heart.

But supplies of sodium thiopental dried up in this country in 2011, and corrections officials chose pentobarbital as its replacement in the lethal injection formula. No inmates have been executed in Louisiana since Bordelon, however.

Pentobarbital is used to kill badly injured or otherwise sick animals.

Clements told Brady that a two-page Wikipedia definition of pentobarbital, brought to court Tuesday by state attorneys, is not sufficient information to determine whether a single dose can kill inmates painlessly.

Clements said after the hearing: “We need to know if they (state officials) have pentobarbital. If they have it, where did they get it? Did they get it from China? From India?”

Added Clements: “I think they’re flying by the seat of their pants.”

Wade Shows, attorney for the Department of Public Safety and Corrections, said after the hearing, “Our people have done their due diligence” on pentobarbital.

Shows said several other states use pentobarbital in single-chemical lethal injections. He added that courts in those states have ruled that pentobarbital does not cause a “cruel and unusual” death.

Texas has executed nine death row inmates with single doses of pentobarbital since July, Jason Clark, public information officer for the Texas Department of Criminal Justice, said Tuesday.

“I believe other states used pentobarbital in a single dose before Texas,” Clark said. He said those states include Arizona and Ohio.

Like Shows, Clark said pertinent court decisions thus far have indicated that pentobarbital is not a “cruel and unusual” chemical for execution of death row inmates.

“We acquire our pentobarbital from U.S. vendors,” Clark added. He also said the drug is used in this country as an anesthetic during surgeries. “A person loses consciousness in 15 to 20 seconds,” Clark said.

In Baton Rouge, Brady said he wants both sides of the lethal-injection dispute to report to him Friday after Morvant concludes his hearing in state District Court. If necessary, Brady added, he will hold another hearing on Sepulvado’s case Monday in federal District Court.

Mercedes Montagnes and Cecelia Trenticosta Kappel, attorneys for death row inmate Jessie Hoffman, told Brady they need additional time to research the possibility that pentobarbital subjects humans to a painful death. The judge, however, noted that Hoffman is not yet scheduled for his execution.

Hoffman, 34, faces a death sentence for the 1996 kidnap, robbery, rape and murder of Mary “Molly” Elliot, a 28-year-old advertising executive, whose New Orleans’ office was near the parking garage where Hoffman worked.

In Sepulvado’s case Tuesday, the Louisiana Board of Pardons decided not to grant Sepulvado a hearing on his petition for clemency.

Sophie Cull, director of the Louisiana Coalition for Alternatives to the Death Penalty, expressed disappointment over the decision, adding in a written statement: “If Chris is executed … he will be the first non-volunteer put to death by the State of Louisiana in over a decade.”

Cull’s remark referred to the fact that Bordelon chose not to pursue appeals of his murder conviction and asked to be executed in 2010.