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Documents: US state officials indecisive about execution

March 3, 2015

ATLANTA (AP) — Georgia state prison officials who postponed the execution of Kelly Renee Gissendaner late Monday night were indecisive about whether to proceed with a cloudy lethal injection drug, according to court documents.

At one point officials said they weren’t sure whether they checked “this week’s or last week’s” batch. A day later, they decided to temporarily halt all executions until they could more carefully analyze the cloudy pentobarbital.

The cloudy drug bolstered death penalty opponents, who have been vocal in their opposition after several botched executions in other parts of the U.S. and the increasing use of compounding pharmacies for execution drugs. States have been scrambling since European pharmaceutical companies began restricting the flow of lethal drugs to places that conduct executions.

Gissendaner had originally been set for execution last week on Feb. 25, but it was postponed because of a threat of bad weather.

Attorneys for Gissendaner, who was convicted of murder in the February 1997 slaying of her husband, said in a filing with the U.S. Supreme Court that a lawyer for the state called them around 10:25 p.m. Monday to say the execution would be postponed several days because the state’s pharmacist had looked at the drug an hour earlier and determined it was cloudy.

The state’s lawyer called back about five minutes later to say the prison wasn’t sure which drugs they had checked, “this week’s or last week’s,” and that they were considering going forward, the filing says.

The lawyer then called a third time, saying “this particular batch (of drugs) just didn’t come out like it was supposed to” and they weren’t going to proceed, according to the court filing.

At about 11 p.m., the state told reporters the drug was sent to an independent lab to check its potency and the test came back at an acceptable level, but the prison was postponing the execution “out of an abundance of caution.”

The back and forth was detailed in Gissendaner’s emergency motion for a stay of execution filed late Monday with the U.S. Supreme Court.

Georgia Attorney General Sam Olens said in a statement it is “essential that executions are carried out in a constitutional manner” and that he approved of the decision to temporarily suspend executions.

The cloudiness could be contamination by bacteria or some impurity, said Michael Jay, a professor at the University of North Carolina’s Eshelman School of Pharmacy.

If the particles were big enough, they could clog blood vessels when injected or could lodge in the lungs, Jay said. It could also make the drug less potent, making an inmate very sleepy but not kill them, he said.

“If it’s a solution that’s supposed to be clear and it’s not clear, it should never be injected,” Jay said. “So they did the right thing by not injecting it.”

Georgia and other death penalty states have been buying made-to-order execution drugs from compounding pharmacies in recent years after pharmaceutical companies stopped selling to U.S. prisons. Georgia’s execution calls for a single-drug injection using pentobarbital.

Since switching from a three-drug combination to pentobarbital alone in July 2012, Georgia has carried out five executions, four of them with drugs bought from a compounding pharmacy.

Many death penalty states have also adopted secrecy laws to hide the identity of their drug providers. A 2013 Georgia law prohibits the release of any identifying information about the source of execution drugs or any entity involved in an execution, classifying that information as a “confidential state secret.”

Gissendaner’s appeals before the Supreme Court — including one that argues Georgia’s lethal injection procedures aren’t transparent enough to allow a court challenge — are still pending.

Gissendaner would have been the first woman executed in Georgia in 70 years and only the 16th woman put to death nationwide since the Supreme Court allowed the death penalty to resume in 1976. About 1,400 men have been executed since then, according to the Death Penalty Information Center.

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Follow Brumback on Twitter at http://twitter.com/katebrumback

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