Over the past year numerous pharmaceutical companies have tried to distance themselves from lethal injections (sometimes voluntarily, sometimes under pressure). Until now, all these efforts involved the use of an anesthetic, the first drug in 3-drug execution protocols, or the only drug in one-drug protocols. First Hospira, then Novartis, Lundbeck, Kayem and Naari have all objected to the use of their anesthetic products in U.S. executions.
Now, Hospira is under fire for pancuronium bromide, which is the second drug in all 3-drug execution protocols in the U.S. Hospira is the sole provider of this drug for executions; it’s a muscle-relaxant that in executions is used to induce paralysis. Paralysis during executions makes the condemned look like he’s peacefully falling asleep even if he’s in excruciating pain. This makes the witnesses to the execution feel better. Ironically, this masking of possible pain is why pancuronium bromide is widely banned in the euthanizing of animals.
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Back in 2010, the pharmaceutical giant Hospira Inc. asked Ohio to not use its drug, the anesthetic sodium thiopental, in executions. Ohio, like other states, refused, so Hospira stopped making the drug.
Then Ohio, like other states, switched to a new anesthetic called pentobarbital. Its manufacturer, Lundbeck, also asked Ohio to not use it in executions. Again, Ohio, like other states, refused. Lundbeck is now actively taking steps to prevent future batches of this drug from getting into the hands of executioners. So, with 12 executions scheduled between now and May 2013, Ohio is facing yet another execution drug shortage.
What now? Ohio is considering switching drugs again. Its choices include a drug that helped kill Michael Jackson (propofol), or a combination of drugs that could cause convulsions or vomiting (midazolam and hydromorphone). (No word on whether Ohio might consider even cheaper alternatives.)
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As Maryland officials attempt to develop a lethal injection protocol that is acceptable to the courts, they have run into an unexpected roadblock – Globalization. Pharmaceutical companies that produce the drugs used in executions are for the most part multi-national entities, either headquartered in Europe or with large business interests in that region. Capital punishment has been banished in Europe. Extraditing suspects who might face the death penalty is forbidden, and exporting materials that might be used for executions has now come under intense scrutiny.
Sodium thiopental, the anesthetic Maryland (and all other executing states) had been using as the first drug in its three-drug protocol, was produced by Hospira, at a factory in Italy. Now, because of controversy over its use in executions, Hospira will no longer make the drug at all. A generic version of sodium thiopental is manufactured by a subsidiary of Swiss-based Novartis, but that company has announced it will take all steps necessary to prevent its export to the US. An alternative to sodium thiopental, pentobarbital, which has been used in Oklahoma and may soon be used in Ohio, is made by a company called Lundbeck, based in Denmark. That company has already gone on record objecting to the use of their drug in executions, and it may only be a matter of time before Lundbeck takes steps to ensure that their drug doesn’t wind up in US execution chambers.
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The news in today’s New York Times that Hospira, Inc., the only FDA approved manufacturer of the lethal injection anesthetic sodium thiopental, has decided to stop making that drug has thrown the status of U.S. executions into further disarray. There has been a shortage of the drug for a year, delaying some executions and prompting states to take unusual and often highly secretive measures to find other suppliers. Now it is clear that the shortage will be permanent.
It is certainly NOT good news that the production of a drug with positive medical uses has been discontinued, but pharmaceuticals (and, for that matter, human beings) are not created to kill people, so using them for that purpose is bound to cause confusion, both moral and legal.
This ongoing saga, with states scrambling to find drugs for their executions, has only served to illustrate how degrading the whole death penalty enterprise is. All who participate in it, from the jurors, to the lawyers and judges, to the families of the victims and of the condemned, to the prison guards and wardens, to the medical professionals and drug companies like Hospira, are dragged into a system the sole purpose of which is to kill human beings, a purpose which goes against our most basic principles of human rights and human dignity.
In this case, Hospira has opted out, reiterating in its statement that capital punishment is “a use Hospira has never condoned” for their drug, and lamenting that “our many hospital customers who use the drug for its well-established medical benefits will not be able to obtain the product.”
Execution witness viewing room (c) Scott Langley
The Death Penalty Information Center released its Year End Report today. While there were no major turning points for the U.S. death penalty in 2010, the unworkable and degrading nature of capital punishment continued to reveal itself throughout the year. There were lots of executions early – the first three executions took place on the same day, January 7 – but the pace slowed considerably, and the last two months of the year saw only two executions total. There were 46 executions in all, in twelve different states. Here are four major themes that emerged in 2010.
1. TEXAS AND OHIO LEAD THE (WRONG) WAY: Texas, as usual, led the way with 17 executions (though this was significantly down from last year), while Ohio put 8 men to death. Ohio’s execution proliferation caused one judge, Ohio Supreme Court Justice Paul E. Pfeifer, who also happens to be one of the people who wrote Ohio’s death penalty law, to worry that his state was becoming too much like Texas, and to call for all death sentences in the state to get a second look. He told the Columbus Dispatch: “There are probably few people in Ohio that are proud of the fact we are executing people at the same pace as Texas.”
No such second guessing was allowed in Texas, where a hearing looking into whether Cameron Todd Willingham might have been wrongfully executed and another hearing considering whether the danger of executing the innocent made Texas’ death penalty unconstitutional were both put on ice by state appeals courts. One or both of these important hearings could resume in 2011, but it is more likely that the Texas death penalty will continue to skate by without serious examination, despite the exonerations and wrongful executions we already know have happened. (Silver lining: The Texas Coalition to Abolish the Death Penalty reports that there were just 8 death sentences in the Lone Star State in 2010, the lowest since capital punishment was re-instated in 1976.)
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Arizona today admitted that it acquired the execution drug sodium thiopental from a non-FDA approved source, but continues to seek to execute Jeffrey Landrigan on October 26. The state refuses to say how they scored their new stash of the drug, citing a state law guaranteeing secrecy for executioners. The state also continues to claim that they got the drug lawfully, though this is difficult to reconcile with the admission that it was obtained from a source other than Hospira Inc., its only FDA-sanctioned provider.
There are plenty of other problems with Arizona’s plans to kill Jeffrey Landrigan, including that his trial attorney, who had never handled a death penalty case before, failed to introduce important mitigating evidence. Since the trial, much of that evidence has come to light, so much in fact that the judge who sentenced him to death now says that she would have “no choice” but to find that the mitigating circumstances were “sufficient to call for leniency”.
But no appeals court has ever held a hearing to examine Mr. Landrigan’s claim of inadequate counsel, and an execution has been scheduled anyway.
So, to sum up: Don’t Ask about the failures of Jeffrey Landrigan’s lawyer, and Don’t Tell anyone about the secret drug purchases of Arizona’s executioners.
At least for now. Litigation continues, as does an appeal for clemency.
As discussed previously here, the lethal injection drug sodium thiopental has been in short supply, and states have been running out. Its manufacturer, Hospira, won’t be able to make more until at least early next year. Yet some states have mysteriously been able to get new supplies. Oklahoma carried out an execution last night with drugs they may have obtained illegally from Arkansas. The sudden appearance of a new batch of sodium thiopental in California has raised questions about whether they may have acquired it from overseas, and, like California, Arizona is refusing to reveal where it got its recent supply of the drug.
All this so states can continue to kill prisoners.
Hospira’s plea for states to stop using their product in executions may have fallen on deaf ears, but there could legal ramifications if states are acquiring FDA regulated drugs illegally. According to the Daily Beast, citing the Oklahoma Department of Corrections, “Oklahoma did not consult a DEA registrant in obtaining the drug from Arkansas and filed no paperwork recording the transaction,” as is required by Federal law.
California’s new batch of sodium thiopental expires in 2014. Hospira’s spokesman Dainel Rosenberg to the Arizona Republic, “The expiration dates for lots last manufactured by Hospira are for 2011. Therefore, product with an expiration date of 2014 cannot be Hospira product.” Since Hospira is the only FDA approved manufacturer of this drug, what is it that California has?
Arizona is scheduled to execute Jeffrey Landrigan on October 26, but is also concealing where or how it acquired the sodium thiopental it plans to us, telling the Arizona paper only “The Department has lawfully obtained the necessary chemicals under its current written protocol ( . . . ) in sufficient quantity for an execution.”
We have a right to know how our states are carrying out this most extreme act of punishment. Treating the acquisition of lethal injection drugs as if it were some big national security secret is not only suspicious. It is an insult to the public in whose name these states are zealously trying to kill people.
Now we know why California is in a rush to execute Albert Brown. His lethal injection, now scheduled for 9 pm on Thursday, September 30, will take place just three hours before California’s supply of one of the drugs expires. The drug in question, of course, is sodium thiopental, the same drug that its manufacturer, Hospira, has called on states to stop using for executions. Sodium thiopental, an anesthetic that has very important medical uses, is currently in short supply; using it to kill rather than to heal should be unacceptable to all, regardless of their position on the death penalty.
Given this mess, the 9th Circuit federal appeals court has asked the judge who earlier denied a stay of execution to reconsider his decision.
Hospira, is the lone US company that manufactures sodium thiopental, the anesthetic used in all lethal injections (both the three drug and the new one drug methods). Today, the company sent a letter to all states urging them to stop using the drug for executions.
According to Ohio’s The Dispatch, which obtained a copy of the letter, Hospira vice president Dr. Kees Groenhout wrote:
Hospira provides these products because they improve or save lives and markets them solely for use as indicated on the product labeling. As such, we do not support the use of any of our products in capital-punishment procedures.
There is a worldwide shortage of the drug, which is due, according to Hospira, to “manufacturing issues,” so its continued use for killing, rather than for its intended medical use, is especially abhorrent. With an execution scheduled in Georgia tonight, and many more scheduled through the end of the year, it remains to be seen how the states, including Ohio, will respond, or, if there is no response, what legal action Hospira could take.
There is a worldwide shortage of sodium thiopental, the first drug in the three drug series most states use to put prisoners to death. It is an anesthetic, reportedly manufactured by only one company - Hospira – and has legitimate medical uses, so one hopes that during this period of scarcity execution chambers are at the bottom of the waiting list. This shortage probably accounts for the attempt by Oklahoma last night to substitute a different drug – Brevital, a form of methohexital sodium – for its scheduled execution of Jeffrey David Matthews. The sodium thiopental that the Oklahoma Corrections Department had in stock was apparently past its expiration date.
Of course, the courts did not go for this, and Matthews’ execution was stayed for two months. This is the third time Matthews’ execution has been postponed (the first two by 30-day reprieves from the Governor), and there are many compelling reasons that this stay should be made permanent. As documented here, the case against Matthews is shaky, with no physical evidence and an investigation that involved what one investigator called “suspicious” evidence. That same investigator has concluded that “there is a reasonable likelihood that Matthews is innocent.” The star witness against Matthews alleges he was coerced into cooperating by a combination of beatings and threats, and has since recanted his testimony. He now says Matthews was not involved in the crime.
Oklahoma’s Pardon and Parole Board voted 3-2 to deny clemency, and recently refused to reconsider. The Governor is only allowed two reprieves, so there is little more he can do, officially at least. But there has to be a way out of this mess. Oklahoma officials should use this 60 days wisely, and find a way to once and for all stop the execution of Jeffrey David Matthews.