By Natasha Minsker, Death Penalty Policy Director, ACLU of Northern California

The California Department of Corrections and Rehabilitations (CDCR) finally released 989 pages of heavily redacted records to the ACLU of Northern California revealing how it acquired one of the drugs needed for executions. The documents literally mention a “secret mission” to get the drugs. They show the expense and incredible lengths California government officials were willing go to in order to carry out executions — and to keep it all secret.

The ACLU believes that it is crucial for us to have full transparency and accountability in government, especially when it comes to executions. These documents dramatically highlight some of the reasons that is so, and clearly show that taxpayer money, not to mention hundreds of hours of public employee time, were no object to acquiring these drugs.

Back in September, California Attorney General Jerry Brown suddenly hurried to carry out an execution, after a nearly five-year hiatus. Judges, reporters and the public all asked themselves “What’s the rush?” Then we found out: the state’s supply of one of the critical execution drugs, sodium thiopental, was about to expire on October 1. After a week-long legal rollercoaster, California courts ruled that the expiration date of pharmaceuticals was not a good enough reason to cut short judicial review in a death penalty case. The execution was halted.

Then, just days later, the CDCR announced it had a new stash of the drug, despite a nationwide shortage. The ACLU of Northern California immediately began asking questions, submitting a Public Records Act request (PDF) to find out how the CDCR got these drugs, how much it paid, and who was involved. For two months, CDCR officials did everything they could to hide the truth. So we filed suit on November 17, to enforce the public record request.

Still, the CDCR would not turn over records on its bizarre shopping spree until a California Superior Court ordered the CDCR to give up the records by December 7, 2010.

Some lowlights from the just-released documents include:

• One CDCR official telling agents he has a “secret mission” for them — to go to Arizona and pick up the drug from prison officials there. Arizona officials agreed to “give” sodium thiopental to California only after California provided them with pancuronium bromide, another drug used in executions.
• A failed global search for the drugs: California officials asked the federal Drug Enforcement Agency (DEA) for special permission to import the drugs from Pakistan. The DEA refused, though we don’t know why since their response is not included in the disclosed records.
• State officials also reached out to nearly a hundred California hospitals and community clinics looking for the drug. They paid $65 for a list of community clinics so they could continue the search. None gave the department the drug.
• The CDCR had a hard time even finding a doctor willing to help them order the drugs. Because this is a lethal controlled substance, a doctor’s authorization is needed to purchase it. It took the CDCR three years to find doctors willing to do so, and it appears the CDCR had to hire them just for this purpose.
• The CDCR now has its own drug buyer on payroll. Following the lead of Arizona, the CDCR has contracted with a specialist to continue the worldwide search for execution drugs. This appears to be how the department was able to order a half-kilo of sodium thiopental from a company in the United Kingdom. Last we heard, that order was sitting at an East Coast post office waiting for the FDA to release it.
• CDCR officials in their emails discuss the need to “find” a reason to avoid putting the contract out for bid (as required by state law), how to avoid state rules regarding payments for international shipments, and how to prevent disclosing that they are the ones making the purchase (as required by federal law).

We still have many questions. More than a hundred pages were withheld and the documents we have received are heavily redacted. What we do know is that while public safety and health care resources are dwindling in California, state officials are wasting huge amounts of the public’s time and money, and doing everything they can to keep their bungled process secret. It’s time to save our precious resources and replace the death penalty with permanent imprisonment.

By James Clark, Death Penalty Field Organizer, ACLU of Southern California

California’s death penalty has always been a bit of a head-scratcher, but the news over the last two weeks may have the record for furrowed brows and rolled eyes. The legal drama that has unfolded as the state tries to execute Albert Brown has shocked legal experts, but just confused everyone else.

There’s a reason for that. Five years ago, when executions were put on hold, it was because of myriad problems with the process of putting people to death. Execution teams were poorly trained, didn’t understand the deadly substances they were handling, and were working in dark, cramped conditions. That’s a recipe for botched executions, which has happened too often in California. When Judge Jeremy Fogel, a federal judge, heard that evidence, he told the state they had to fix the procedure.

So that’s what the state tried to do for nearly five years. The problem is, it wasn’t fixed. When Albert Brown’s execution date was originally set, legal experts reported little chance of the execution taking place because of no less than three pending lawsuits over the procedure and a brand new set of regulations that had never been reviewed by a judge. There were just too many open questions, and the state had simply not finished its task of creating a workable procedure. But Attorney General Jerry Brown went ahead anyway and set an execution date for Albert Brown, knowing full well all of these questions remained.

The result has been a legal rollercoaster with weeks of court hearings and media coverage in which Mr. Brown’s ultimate fate has changed almost by the hour.

Finally on Wednesday, barely a day before the scheduled executions, orders from both state and federal courts said the execution cannot proceed because the courts had not been given enough time to address all the remaining legal issues. Finally, just 30 hours before the scheduled execution, the AG acknowledged that the execution would not proceed.

Why the sudden rush to kill? After all, California has gone 4 1/2 years without any executions and in that time, the murder rate has gone down. The answer is an odd one: the expiration date of the lethal drug. The AG revealed on September 25 that the drugs they need to kill go bad on October 1, and the manufacturer says there won’t be any more available until 2011 (along with a statement about how this drug is supposed to heal people not kill them). Interestingly, the state seems very concerned about at least one line on the drug’s label (its expiration), but wholly unconcerned with another line (its intended use).

The courts have finally put a stop to the rollercoaster, telling the Attorney General quite clearly that we need to take the time to answer these questions before we rush to take a man’s life. The expiration date on the bottle should have nothing to do with it.

This fiasco has shown just how broken California’s death penalty has become. The people of California will be better off when we replace the death penalty with life without parole, requiring people in prison to work and provide restitution to victims’ families.

For those trying to get their heads around this, see below for a timeline of the basics.

August 30, 2010:        Albert Brown’s execution is scheduled for Sept. 28 at 12:01 am, even though the five-year-long time out on executions is still in place.

August 31:                  A judge in Marin County affirms that the moratorium is still in place; execution off.

September 20:            Court of appeals says the Marin judge was wrong and the moratorium on executions is lifted; execution back on.

September 24:            Judge Fogel, still not satisfied with the procedure, comes up with a compromise: Albert Brown can choose between the same old procedure that probably never worked, or a new untested one that no one’s been trained for; execution still on.

September 25:            Dept. of Corrections reveals that its lethal injection drugs will expire on October 1, and new drugs won’t be available until 2011. Execution still on, but it better be quick.

September 27:            Governor Arnold Schwarzenegger moves the execution to Sept. 29 at 9pm to give defense time to file appeals. Later, the 9th Circuit Court of Appeals reverses Judge Fogel’s order, saying his “compromise” was inappropriate and the expiration of the drug is not a sufficient reason to move forward. Execution in limbo.

September 28:            Judge Fogel orders a stay of execution, agreeing with the 9th Circuit that he needs more time to figure out if the procedure actually works; execution off for now, but the Attorney General promises to appeal.

September 29:            State and Federal courts agree with Judge Fogel: we need more time. Execution off for good, Dept. of Corrections issues a stand down order.

Albert Brown could have been sentenced to die in prison 28 years ago and the people of California could have forgotten all about him. Instead, we’ve spent months in court and over $4 million to end up right back where we started, with Albert Brown in prison.

Tell Gov. Schwarzenegger to cut the death penalty and convert all death sentences to life imprisonment.