As Legitimate Market for Execution Drugs Dries Up, States’ Secret Execution Practices Become Increasingly Questionable

Pfizer​’s recent announce­ment that it was tight­en­ing con­trols against what it calls the mis­use of its med­i­cines in exe­cu­tions high­lights an on-going strug­gle between states des­per­ate for exe­cu­tion drugs and a med­ical com­mu­ni­ty that believes its involve­ment in the lethal injec­tion process vio­lates its med­ical and cor­po­rate mis­sions and the eth­i­cal stan­dards of the phar­ma­ceu­ti­cal and health pro­fes­sions. As Pfizer and near­ly two dozen oth­er phar­ma­ceu­ti­cal com­pa­nies have end­ed open mar­ket access to drugs poten­tial­ly used in exe­cu­tions, states have respond­ed by increas­ing­ly shroud­ing the exe­cu­tion process in secrecy. 

The states ​“are main­ly con­cerned about los­ing their providers of lethal-injec­tion drugs should the com­pa­nies’ names become pub­lic,” says Linc Caplan in a recent arti­cle in The New Yorker. Otherwise, ​“com­pa­nies that do not want their prod­ucts asso­ci­at­ed with exe­cu­tions will know that their drugs are being used.” He reports that since the Supreme Court upheld Kentucky’s exe­cu­tion pro­to­col in 2008, 20 states have respond­ed to drug short­ages by aban­don­ing pro­to­cols that had been sub­stan­tial­ly sim­i­lar to Kentucky’s, mak­ing ​“unfet­tered sub­sti­tu­tions” to their pro­to­cols in ​“des­per­ate attempts to adhere to their execution schedules.” 

Caplan reports that States ​“have also been increas­ing­ly mis­lead­ing in their efforts to obtain drugs for exe­cu­tions.” He cites doc­u­ments show­ing that one Ohio offi­cial urged state drug pur­chasers to iden­ti­fy them­selves as from the Department of Mental Health and warned they should ​“not men­tion any­thing about cor­rec­tions in the phone call or what we use the drug for.” Louisiana sim­i­lar­ly obtained exe­cu­tion drugs from a local hos­pi­tal, which mis­tak­en­ly assumed they were need­ed for med­ical use. Last week, an Oklahoma grand jury report described that state’s secre­cy prac­tices as pro­duc­ing a ​“para­noia” that ​“cloud­ed [prison offi­cials’] judg­ment and caused admin­is­tra­tors to bla­tant­ly vio­late their own policies.” 

An arti­cle by Chris McDaniel in BuzzFeed after the release of that report doc­u­ment­ed that the same secre­cy and lack of over­sight crit­i­cized by the Oklahoma grand jury is com­mon in oth­er states, and has con­tributed to exe­cu­tion prob­lems in Missouri, Georgia, and Ohio. Arizona and Missouri paid exe­cu­tion­ers in cash, and Missouri’s mis­man­age­ment of that fund like­ly vio­lat­ed fed­er­al income tax law. Missouri’s secre­cy, McDaniels writes, also ​“allowed it to pur­chase exe­cu­tion drugs from a phar­ma­cy in Tulsa, Oklahoma, that was not licensed in Missouri and had ques­tion­able phar­ma­ceu­ti­cal prac­tices.” Other states, like Texas and Arizona ​“have used the secre­cy to pur­chase drugs ille­gal­ly,” he reports. 

In The New Yorker, Caplan con­cludes, ​“In the five years between Hospira’s deci­sion to stop mak­ing sodi­um thiopen­tal and Pfizer’s deci­sion to stop sup­ply­ing drugs for exe­cu­tions, the unsuc­cess­ful effort, by one state after anoth­er, to car­ry out lethal injec­tions in a man­ner that meets stan­dards of fair­ness and reli­a­bil­i­ty has made it increas­ing­ly clear that states can­not con­sti­tu­tion­al­ly per­form these types of executions.”