Arkansas Prisons Suspend Search for Execution Drugs, Ask For Even Broader Drug Secrecy Law

Unable to legit­i­mate­ly pur­chase lethal-injec­tion drugs or car­ry out exe­cu­tions with­out reveal­ing who man­u­fac­tured its drugs, Arkansas has sus­pend­ed efforts to obtain a new sup­ply of exe­cu­tion drugs until state law is amend­ed to keep secret the iden­ti­ty of the drug manufacturers. 

The Arkansas Department of Corrections con­firmed on July 17, 2018 that it had halt­ed its search for exe­cu­tion drugs ear­li­er this year fol­low­ing a November 2017 Arkansas Supreme Court deci­sion requir­ing the state to dis­close por­tions of the phar­ma­ceu­ti­cal drug and pack­ag­ing labels for the drugs it intend­ed to use in exe­cu­tions. Those labels per­mit­ted the pub­lic and the phar­ma­ceu­ti­cal indus­try to iden­ti­fy the man­u­fac­tur­ers of the exe­cu­tion drugs, who then sued the state or charged state offi­cials with vio­lat­ing the com­pa­nies’ contract rights. 

Solomon Graves, spokesper­son for the Department of Corrections said the depart­ment has been work­ing with the gov­er­nor’s and attor­ney gen­er­al’s offices on amend­ing the Arkansas Method of Execution Act to pre­vent dis­clo­sure of infor­ma­tion that would iden­ti­fy drug man­u­fac­tur­ers. ​“We are not active­ly look­ing for addi­tion­al drug sup­plies at this time,” he said. 

Arkansas does not cur­rent­ly have any exe­cu­tion dates set, but it sched­uled eight exe­cu­tions in an unprece­dent­ed 11-day peri­od in April 2017 in an attempt to car­ry out the exe­cu­tions before its sup­ply of the seda­tive mida­zo­lam expired. Four of the exe­cu­tions went for­ward, but not before con­tro­ver­sy sur­round­ed the state’s pur­chase of all three drugs in its execution protocol. 

Prior to the exe­cu­tions, Associated Press learned that the state’s sec­ond drug — the par­a­lyt­ic vecuro­ni­um bro­mide — had been man­u­fac­tured by Hospira, a sub­sidiary of the drug­mak­er Pfizer. Pfizer, which made inter­na­tion­al news with its May 2016 announce­ment of strict dis­tri­b­u­tion con­trols designed to block states from obtain­ing and using its med­i­cines in exe­cu­tions, informed its drug dis­trib­u­tor, McKesson Medical-Surgical, that the sale vio­lat­ed their dis­tri­b­u­tion agree­ment. McKesson then sued Arkansas, alleg­ing that the state had delib­er­ate­ly mis­led the com­pa­ny to believe that the drug would be used for legit­i­mate medical purposes. 

The com­pa­nies Fresenius Kabi USA, LLC, and West-Ward Pharmaceuticals Corp.—the man­u­fac­tur­ers of the potas­si­um chlo­ride that Arkansas used as the third drug in its exe­cu­tions — also attempt­ed to inter­vene in fed­er­al lit­i­ga­tion to stay the April exe­cu­tions, writ­ing that ​“use of their med­i­cines for lethal injec­tions vio­lates con­trac­tu­al sup­ply-chain con­trols that [they] have imple­ment­ed … to pre­vent the sale of their med­i­cines for use in capital punishment.” 

Following the expi­ra­tion of its sup­ply of mida­zo­lam, the direc­tor of the Department of Correction, Wendy Kelley, pur­chased a new sup­ply of the drug in cash. The pack­age iden­ti­fied a New York com­pa­ny, Athenex, as the man­u­fac­tur­er, who said Arkansas acquired the drug in vio­la­tion of the com­pa­ny’s agree­ments with dis­trib­u­tors bar­ring the use of its prod­ucts in executions. 

McKesson’s law­suit remained active until the state’s sup­ply of vecuro­ni­um bro­mide expired this Spring and the par­ties agreed the suit had become moot. However, the expi­ra­tion of the drug left Arkansas with­out the means to car­ry out any exe­cu­tions until it obtains a new sup­ply of the paralytic. 

Graves said that the Department of Corrections has no inten­tion of resum­ing its search for exe­cu­tion drugs until the state leg­is­la­ture exempts the sup­pli­ers and man­u­fac­tur­ers from the state’s pub­lic dis­clo­sure laws. The leg­is­la­ture does not meet until 2019, at which point the oth­er two exe­cu­tion drugs will have expired.