Louisiana rethinks options in face of drug scarcity
Twenty-three years after the state retired Gruesome Gertie and switched to lethal injection for executions, the electric chair could make a comeback in Louisiana.
States are scrambling for death penalty alternatives because of a clampdown on the availability of deadly drugs for executions. Old-time tools that were banished to states’ history museums when lethal injection came onto the scene could once again come into vogue. In Missouri and Wyoming, firing squads are under consideration. Gas chambers and electrocutions also are up for discussion as legislators across the country balk at being hemmed in by drug companies’ aversion to facilitating the death penalty.
In Louisiana, where 81 men and two women await execution, state Rep. Joseph Lopinto said he expects to file legislation this year diversifying the state’s death penalty law. At the moment, executions in Louisiana must be carried out through a needle. A hangman’s noose, gas chamber, electric chair and firing squad are not legally allowed alternatives.
“I’m going to bring back the electric chair,” said Lopinto, R-Metairie.
Before making any changes to the state’s death penalty law, Louisiana plans to execute 70-year-old Christopher Sepulvado this week. Sepulvado’s crime was vicious. He was convicted of beating and scalding to death his 6-year-old stepson, Wesley Allen Mercer.
Sepulvado married Mercer’s mother less than a week before the boy’s death. The day after the wedding, Mercer — called Allen by his family — soiled his pants. Court documents spell out what authorities claim led to the child’s death. Sepulvado punished the child for the next three days, spanking him with a belt and threatening to hang him from a ceiling fan. Meals were withheld, and the child’s head was shoved into a toilet. Sepulvado beat him with a screwdriver. Finally, the boy was dropped into a tub filled with scalding water. He died hours later.
DeSoto Parish District Attorney Richard Z. Johnson was a young prosecutor when Sepulvado went on trial for murder in the early 1990s. Decades later, it’s still the worst child abuse case Johnson has ever seen.
“It stands out. It definitely stands out (as) the most horrendous murder case I’ve been involved with ... in 25 years,” Johnson said.
Louisiana has struggled to execute Sepulvado amid drug companies’ aversion to having their products used in death penalty chambers. Execution dates have come and gone as the Jindal administration and Sepulvado’s attorneys battle in court over the details of the drugs that will be used to kill him.
States are able to get lethal drugs; they just are loathe to say how they got them. It’s against this backdrop that Sepulvado yet again awaits execution Wednesday at the Louisiana State Penitentiary at Angola.
“(States) were importing drugs from Europe. They go to compounding pharmacies. They borrow drugs from each other. They’re experimenting with drugs never used before on any human being,” said Deborah Denno, a law professor at Fordham University, in New York.
The Jindal administration wants to use pentobarbital for Sepulvado’s execution if the drug can be obtained. So far, the state’s had no luck finding it. The backup plan is fraught with controversy.
The Jindal administration has turned to an experimental combination employed by Ohio last month.
Dennis McGuire died from a mix of midazolam and hydromorphone in January for raping and killing an expectant mother. Twenty-six minutes ticked by before McGuire was pronounced dead. News reports indicated he struggled and gasped for 10 minutes.
The controversy over his death grew Friday with suggestions his attorney told him to pretend he was suffocating. The Public Defender’s Office discounted the suggestions, saying McGuire only began to struggle after he lost consciousness.
In Louisiana, convicted killer Feltus Taylor was dead within 16 minutes of entering the execution chamber in 2000 — including the time it took him to apologize for his crime and to be strapped onto a table. Gerald Bordelon died within minutes of receiving his lethal injection four years ago, back when the state had a stash of a now-discontinued drug.
Sepulvado’s attorneys said in court filings that the decision to possibly use the Ohio combination came like a bolt from the blue. The two-drug combo is a backup. Louisiana’s preference is pentobarbital.
Asked how comfortable he is with following Ohio’s lead and using a largely untested drug combination, Gov. Bobby Jindal said Friday his aides are confident the procedure will work. “(We’re) ready to implement the two drugs,” the governor said in a brief telephone conversation.
Lopinto, chairman of the House Criminal Justice Committee, said he talked to Jimmy LeBlanc, secretary of the state Department of Corrections, about exploring other execution methods six months ago. The Ohio execution only strengthened Lopinto’s resolve.
“We all would rather use lethal injection. ... (Electrocution) is an option we may not like, but it may be a necessity. I don’t think (LeBlanc’s) for it. I don’t think I’m for it. The alternative is ... we’re not going to execute anyone,” Lopinto said.
Jindal said his aides are researching diversification. “We are open to the idea of changing the protocol,” he said.
Richard C. Dieter, executive director of the Death Penalty Information Center in Washington, D.C., said he doubts states could successfully return to the old methods. “Even if they were approved by a legislature, it is not clear that they would be upheld under the ‘cruel and unusual’ clause of the Constitution. The public might also object to the death penalty completely if such methods were adopted,” he said.
State Sen. Bob Kostelka, R-Monroe, shares Dieter’s concerns. Kostelka is a former judge and former prosecutor whose Senate committee would hear any legislation that would change the execution procedures.
“If ‘cruel and unusual punishment’ means anything, I don’t know how you can improve upon what we got. Going back to the electric chair would probably open up a lot more cases,” he said. “I don’t see why we should jump in and try to change anything like that.”
Talk of diversifying states’ death penalty options stems from a desire to jump-start executions. In Louisiana, some death row inmates have been there since the 1980s. The problems getting lethal drugs aren’t the only reason they’re still there; however, the drugs do play a part, as defense attorneys raise concerns that experimental drugs and lethal prescriptions produced by largely unregulated compounding pharmacies violate the U.S. Constitution’s prohibition against cruel and unusual punishment.
Among other things, Sepulvado’s attorneys want to know the manufacturer, lot number, quantity, expiration date and source of the drugs that will kill Sepulvado after 21 years on death row. The state handed over hundreds of pages of documents to the defense attorneys. Among the documents was a 2012 email, which indicated the Jindal administration was working daily to get a lethal drug. Sepulvado’s attorneys combed through the documents for communications between state officials and drug suppliers. They found one communication.
“As of today’s date — one week before the execution —the state still has not explained how it intends to execute petitioner. So far as petitioner’s counsel is aware after extensive consultations with counsel experienced in capital litigation, this is an unheard-of circumstance,” Sepulvado’s attorneys wrote in a recent court filing.
Bordelon — the last person killed by lethal injection in Louisiana — died four years ago from a fatal dose of sodium thiopental. The only U.S. company that manufactured the drug no longer makes it. Louisiana then switched to a three-drug combination: pentobarbital as the agent that renders condemned killers unconscious before pancuronium paralyzes them and potassium chloride stops their hearts.
Communications among corrections officials filed into the court record indicate the state’s pancuronium expired in 2012, before any executions could be conducted with it. “There was some thought once they realized what it was being ordered for we may not be able to get it, and the consensus at a recent meeting was any kind of drug being used for executions was going to be hard or impossible to get,” state corrections official Genie Powers warned in a June 2012 email about replenishment efforts.
At some point, the Jindal administration decided to use only pentobarbital. Then the state shifted gears again and backed the Ohio combination.
Sepulvado’s attorneys, meanwhile, are busy lodging legal challenges in both the U.S. Supreme Court and U.S. District Court. Before the Supreme Court, they argue that Sepulvado’s due process rights were violated with 11th-hour changes in the execution procedure and confusion over what drugs will be used. Before U.S. District Judge James J. Brady, they argue that the state’s execution approach runs afoul of the ban on cruel and unusual punishment.
With attorneys across the country raising concerns about lethal injection methods, the legal landscape keeps changing. Attorneys for Missouri death row inmate Herbert Smulls temporarily succeeded in holding up his execution last month.
Smulls’ lawyers raised two big issues: First, he was a black man convicted by an all-white jury. Second, Missouri will not divulge where it gets its lethal drugs, although it is speculated the source is an Oklahoma compounding pharmacy. Compounding pharmacies are associated with tons of controversy over the potency and oversight of their drugs.
The U.S. Supreme Court briefly halted Smulls’ execution and then let it proceed, sending Sepulvado’s attorneys racing to explain why their case raises different issues. They contend the state violated its own execution protocol and offered to share critical details only after Sepulvado is dead. “Louisiana has refused to disclose virtually every material fact,” the lawyers wrote.
Mercer’s mother said the legal fight frustrates her family’s attempts to move past the tragedy.
“We just want closure. We want to be able to put this behind us,” Yvonne Jones said.
Jones spent seven years in prison for not intervening in her son’s death. She lost custody of her younger son, who was fathered by Sepulvado.
More than 20 years later, Jones now lives near Monroe. She remarried and reconnected with her surviving child once he reached adulthood. She recently wrote a book about her experience as a battered wife.
Jones said Mercer was a loving, caring little boy who was quick with hugs and liked to pick wildflowers. She said Sepulvado beat her and Mercer. She said Sepulvado reduced her to a childlike state in which she was powerless to help her son.
After dropping the child into the scalding water, Sepulvado came out of the bathroom, smiled and chatted before saying he had better check on his boy, she said. Jones said she was so psychologically damaged that she looked at her child’s bright red skin and tried to calm down Sepulvado by suggesting a family vacation.
“I was so far away from reality. Here I am talking about going on vacation, and the man just scalded my child. I was not right,” Jones said.
Jones said Sepulvado’s attorneys knocked on her door a few years ago and asked if she would like to testify on his behalf and save his life. She declined. She also does not plan to be on hand when he is put to death, although she is eager for that day to arrive.
“There was no understanding about abuse and what happens to a person mentally while they are enduring abuse. I, too, suffered at the hand of this man, and my family as well as my son’s family is still suffering today. It’s just sad that after 22 years you can’t set a date for an execution because nobody wants the poor guy to suffer a few minutes before he dies,” she said.
Mark Ballard of The Advocate Capitol news bureau contributed to this report.