Missouri intends to carry out an execution Wednesday with drugs supplied by a loosely-regulated pharmacy the state will not name, highlighting the new lengths prisons are going to in order to buy lethal ingredients.
Advocates opposed to the death penalty have said that new lethal injection methods — being used after pharmaceutical firms refused to sell their products to execution states — may be unethical and unconstitutional and could amount to torture.
As more drugmakers refuse to be part of the execution system, state officials are hiding the trail of their drug purchases — in some cases refusing to divulge the suppliers’ names or making purchases through petty cash and via seemingly defunct hospitals in order to cover the paper trail.
“If you mask executions in a shroud of secrecy, vital oversight is lost,” Maya Foa, death penalty director for Reprieve, told Al Jazeera. “There is a risk that bad drugs could be used — and journalists, lawyers and the public would have no means of knowing what exactly is being injected into the prisoner.”
The scramble for drugs comes amid a backdrop of a drop in overall support for executions. According to a Gallup poll published last month, the number of Americans in favor of the death penalty is at its lowest point in over 40 years, with a 60 percent approval rating. It is down from a high of 80 percent in 1994.
In all, some 32 states have death penalty policies. Last week alone saw Florida and Texas proceed with the execution of convicted murderers. Ohio was scheduled to put a convicted child killer and rapist, Ronald Phillips, to death on Thursday, but a last-minute decision to stay the execution was made so medical experts could assess whether his nonvital organs can be donated to his mother or others.
But finding the means to carry out the ultimate sentence has become harder for execution states.
Corrections departments have been hard pushed to make up for shortages in lethal injection drugs after pharmaceutical companies — like Lundbeck, a pentobarbital manufacturer — requested that their products not be used for executions.
Other firms have followed suit, with Fresenius Kabi, a maker of propofol, and Hikma, a maker of phenobarbital, refusing to sell their drugs as means of execution.
It has led states to use little-tested and in some cases untested mixtures.
In Florida, Darius Kimbrough’s execution last Tuesday was only the second time a mix with midazolam as the first drug in a three-drug protocol was used. The first time was on Oct. 15.
Ohio plans to use a new two-drug combination — midazolam and hydromorphone, a mixture never before used in the United States — to execute Phillips. His execution has been rescheduled for July 2014.
But the Ohio Department of Rehabilitation and Corrections (ODRC) said the cocktail is not new to the state’s policy.
“Since September 2009, these two drugs have been part of the execution policy, to be used in an intramuscular injection if order by the warden in the event execution by intravenous administration were to be unfeasible,” ODRC public-relations officer JoEllen Smith told Al Jazeera.
Death penalty opponents argue that states’ new lethal injection methods could violate the Constitution.
“Imagine I get up in the middle of the night to treat my son because he has a headache and I can’t find the Children’s Motrin so I go for the Children’s Tylenol. This is not like that,” Brian Stull, capital punishment litigator for the American Civil Liberties Union told Al Jazeera.
“(Corrections departments are) reaching into the medicine cabinet to see what might work to kill a fellow human being, and they have no idea the risks that this will entail an excruciating suffering process, and that’s strictly prohibited by our Constitution.”
Foa said, “Departments of corrections have a responsibility to ensure that executions are carried out in a humane manner.”
“To use untried and untested drugs in an execution is to introduce a serious — and constitutionally unacceptable — risk that the execution will amount to an exercise in torture," she told Al Jazeera.
The Eighth Amendment prohibits the government from imposing cruel and unusual punishments, including torture.
Another concern is where the new drugs are being bought.
In response to pressure from the European Union, Missouri returned its supply of propofol to Fresenius Kabi’s U.S. distributor, which erroneously shipped the anesthetic despite an agreement with the German company that it not be used for executions. Last month Missouri announced it would switch to a compounding pharmacy to produce the lethal injection ingredients. Compounding pharmacies traditionally mix drugs for individual patients
“Manufacturers have made it clear that they don't want their medicines — designed to save and improve lives — used to execute prisoners,” Foa said. “Why should compounders be forced to now play henchman to the ever-hungry executioner?”
Compounding pharmacies are regulated by the states, not by the stricter Food and Drug Administration, which oversees drug manufacturers.
One such pharmacy, the New England Compounding Center, made headlines last year after a fungal-meningitis outbreak in Massachusetts was linked to it. Contaminated drugs were distributed to medical facilities in 23 states and killed 48 people. More than 700 others were treated for fungal infections.
Missouri is scheduled to execute convicted serial killer Joseph Franklin on Wednesday at 12:01 a.m. using the new drugs. When asked which compounding pharmacy would produce the drugs, the Missouri Department of Corrections told Al Jazeera that the pharmacy is part of the “execution team” and therefore may remain undisclosed to the public.
Missouri Department of Corrections communications director David Owen replied to an email with a reference to a state law, saying, “Any portion of a record containing identifying information related to a member of the execution team is privileged and not subject to discovery, subpoena or other means of legal compulsion or subject to disclosure.”
Protecting the identity of the drug producers raises concern, not least because it deprives condemned inmates’ lawyers of information they could use to mount an appeal on grounds of inhumane treatment.
Stull said, “The prisoner who’s facing execution by the state has to prove substantial risk of unnecessary pain during the execution, but at the same time, he’s deprived of the information that he needs to be able to make that challenge.”
Texas, the state with the highest execution rate in the country since the death penalty was reinstated in 1976, purchased pentobarbital from Pharmacy Innovations, a compounding pharmacy, under a defunct hospital’s name, according to a lawsuit filed last month.
The suit claims that the Texas Department of Criminal Justice (TDCJ) “purchase order stated that the drugs were for and to be delivered to the ‘Huntsville Unit Hospital,’” a facility that has not existed since 1983. Pharmacy Innovations said it was “completely unaware” the drugs were intended for lethal injections and canceled the order before it was processed.
Last month, Jasper Lovoi, owner of Woodlands Compounding Pharmacy, demanded that the TDCJ “return the vials of compounded pentobarbital.” In a letter to the department, Lovoi said the state of Texas promised that the sale of the drugs would be on the “down low” but instead found his name and the name of his pharmacy “posted all over the Internet.”
Texas refused to return the pentobarbital to the compounding pharmacy. “The drugs were purchased legally by the agency,” the TDCJ said in a statement. “TDCJ has no intention of returning the pentobarbital.”
In an attempt to veil payment transactions, Texas reportedly bought pentobarbital using a credit card instead of a traditional purchase order. Similarly, Oklahoma has been buying its lethal injection drugs with petty-cash accounts.
“You want to be able to protect the identities of the people participating, the executioners and the supplier of the drugs,” Jerry Massie, spokesman for the Oklahoma Corrections Department, told The New York Times.