The application for a stay of the mandate pending the disposition of the petition for a writ of certiorari presented to the Chief Justice and referred to the Court is denied. The petition for a writ of certiorari is denied. Justice Ginsburg
and Justice Sotomayor would grant the application and the petition for a writ of certiorari.
The inmates are Danny Lee, Wesley Ira Purkey, Dustin Lee Honken and Keith Dwayne Nelson. All were convicted of brutal crimes. Their lawyers assert in a brief their convictions were flawed. From the Times article today:
“The prosecution’s own evidence,” the brief said, “was that the child was murdered solely by the far more culpable co-defendant.”
Ruth Friedman, a lawyer for Mr. Lee, said the government had used “junk science and false evidence” to obtain his conviction and secure a death sentence. “In what may be an unprecedented occurrence in a capital case,” she said in a statement, “the trial judge, the lead prosecutor and the victims’ family all oppose executing Danny Lee and believe a life sentence is appropriate.”
And with that, federal executions will resume after a 17 year hiatus. Three of the four inmates are set to die in July, and the fourth in August. AG Barr says the feds will use only one chemical, pentobarbital, instead of the three drug cocktail that has caused so many botched executions (in this 2014 dissent, Justice Sotomayor referred to the cocktail as being burned at the stake). I prefer "You Wouldn't Do a Dog This Way". I explain the cocktail here. An example is here. Here is a summary of an Amnesty International report on the botched executions.
As for pentobarbital, think Nembutal (the yellow sleeping pills that used to be called "yellow jackets"), which has been around at least since the 1960's. In 2016 and 2017, the FDA approved an injectable form of 50 mg Nembutal. Abbott makes the pill (which is 100 mg), but the applications for the injectable versions have been made by SAGENT PHARMS INC, Custopharm, Inc. and Athenex, among others.
Athenex is opposed to using its injectibles for executions:
Athenex is dedicated to improving the health and well-being of patients by supplying an extensive portfolio of injectable pharmaceutical products. Athenex does not want any of our products used in capital punishment. Since inception of marketing these products, Athenex implemented appropriate distribution controls and other measures with our wholesaler partners to prevent our products being used in capital punishment. Athenex does not accept orders from correctional facilities and prison systems for products believed to be part of certain states’ lethal injection protocols. Further, Athenex distributors and wholesalers have agreements with Athenex not to sell or distribute any such products to these facilities. Athenex does not distribute these products through wholesalers unwilling to implement distribution control to prevent capital punishment.
Custopharm also has taken measures to prevent its drug from being used to kill people:
To help ensure that our products are not used in capital punishment, Custopharm, Inc. is implementing appropriate distribution controls and other necessary measures. These include not accepting orders from correctional facilities and prison systems for products believed to be part of lethal injection protocols and asking our distributors and wholesalers to make commitments to not sell or distribute any such products to these facilities.”
In fact, every manufacturer of injectable pentobarbital and 17 other drugs that could be used in executions objects to the use of its drugs in executions -- and has controls in place. For more, check out the Lethal Injection Information Center.
