Secrecy

Tennessee Supreme Court Hears Challenge to Lethal-Injection Protocol

The Tennessee Supreme Court heard oral argument on October 3, 2018 of an appeal brought by 32 death-row prisoners challenging the constitutionality of the state's execution protocol. In a move criticized by one of the court's justices as a “rocket docket,” the court removed the case from a lower court and set argument for one week before Tennessee's scheduled October 11 execution of Edmund Zagorski. Previously, the court denied a stay of execution to Billy Ray Irick, allowing him to be executed before the lethal-injection issues were resolved. Arguing for the prisoners, assistant federal defenders Kelley Henry and Dana Hansen Chavis told the court that “unassailable science” shows that midazolam, the first drug used in Tennessee executions, is insufficient to block the intense pain caused by the second and third drugs. The prisoners asked the court to consider medical evidence from Irick’s execution that Irick had been conscious while experiencing the torturous effects of the vecuronium bromide injected to induce paralysis and the potassium chloride used to stop his heart. Witnesses to Irick’s execution reported that he choked, moved his head, and strained his forearms against restraints while being put to death. The prisoners offered a sworn statement from Dr. David Lubarsky, one of the nation’s leading anesthesiologists, who offered an opinion “to a reasonable degree of medical certainty” that Irick “was aware and sensate during his execution and would have experienced the feeling of choking, drowning in his own fluids, suffocating, being buried alive, and the burning sensation caused by the injection of the potassium chloride.” “If the Eighth Amendment means anything,” Henry argued, “then the court will rule in favor of the plaintiffs.” Much of the argument focused on the requirement imposed by the U.S. Supreme Court that before a state’s chosen execution method can be declared unconstitutionally cruel and unusual, prisoners must prove that some other constitutionally-acceptable method is available to execute them. The Tennessee prisoners proposed that the state could switch to a one-drug protocol using pentobarbital, which both Georgia and Texas have recently used in carrying out executions. Alternatively, they suggested that Tennessee drop the paralytic drug from the execution process, citing testimony that its inclusion causes additional, unnecessary pain. Tennessee’s lawyers argued that the state had made a “diligent effort” to obtain pentobarbital but none of the approximately 100 suppliers the Tennessee Department of Correction contacted would provide the drug for use in executions. Associate Solicitor General Jennifer Smith provided no explanation for why suppliers refused the sale but said that “[t]he state bears no burden at all” to prove that the drug was unavailable. In an admission that countered one of the frequent claims of execution proponents, Smith said there was no evidence death penalty opponents had interfered with the state’s efforts to obtain the drug. In response to questions from Justice Holly Kirby about the prisoners’ burden of proving that the state could obtain pentobarbital, Henry explained that the state’s refusal to provide any information on its efforts created “procedural roadblocks” to proving that point. Justice Sharon Lee appeared to support the prisoners’ position on transparency, asking Smith how the state could fairly demand that the prisoners “prove what they can’t possibly prove because they can’t get the records.” A motion to stay Zagorski execution is pending before the court, and it is unclear whether the court will rule on the merits of the appeal before his execution date. An application for clemency has also been filed and is under review by Governor Bill Haslam.

Finding “Bad Faith,” Judge Grants Injunction Preventing Nevada From Using Drug in Execution

Finding that the Nevada Department of Corrections acted in “bad faith” to obtain the drug midazolam through “subterfuge,” a Las Vegas trial court has issued a preliminary injunction barring the state from using its supply of that drug in carrying out any execution. The 43-page ruling issued by Judge Elizabeth Gonzalez (pictured) on September 28, 2018 effectively freezes efforts by Nevada prosecutors to execute Scott Dozier, who has waived his appeals and asked to be put to death. Judge Gonzalez found that Nevada prison officials knew when they purchased supplies of each of the drugs in the state's three-drug lethal-injection protocol from drug distributor Cardinal Health that the manufacturers of all three drugs prohibited the use of their medicines in executions. However, Judge Gonzalez limited the injunction to the midazolam produced by the generic-drug manufacturer Alvogen Inc., finding that the company’s distribution contract with Cardinal Health specifically barred sales of the sedative for use in lethal injections. While Gonzalez said she was “disturbed by the conduct of the State” in its purchase of the paralytic drug cisatracurium and its “illegitimate acquisition” of the opiate fentanyl, she said the absence of evidence that drug manufacturers Sandoz Inc. and Hikma Pharmaceuticals USA Inc. had sales controls in place with Cardinal Health at the time Nevada purchased supplies of those drugs was sufficient to deny them injunctive relief. The court issued its order after week-long hearing on a lawsuit filed by Alvogen just before Dozier’s scheduled July 11, 2018 execution. Alvogen’s suit alleged that Nevada had obtained its supply of midazolam “by subterfuge” and that Nevada had “intentionally defrauded Alvogen’s distributor” by concealing its intention to use the drugs to execute Dozier and by “implicitly ma[king] the false representation that they had legitimate therapeutic rationale” for buying the drug. Gonzalez’s order notes that even before beginning to distribute midazolam, “Alvogen put in place controls to prevent the direct sale [of the drug] to any department of corrections, or any sale that Alvogen believed could be diverted to be used in an execution.” The judge determined that both Nevada’s prison director, James Dzurenda, and its prison pharmacy director, Linda Fox, knew when they bought Alvogen’s drugs that the company “objected to their use in lethal injection and that they had controls in place to prevent sales for such use... Indeed,” Judge Gonzalez wrote, “when purchasing the Alvogen Midazolam Product, Fox’s response to Alvogen’s objections was ‘Oh shit.’ She then asked if Mr. Dzurenda if he would like her to order more [midazolam] because she was ‘certain once it’s in the press that we got it [she] will be cut off.’” Knowing “that it was not allowed to acquire this product for use in capital punishment,” Judge Gonzalez wrote, the Nevada Department of Corrections “was not a good faith purchaser” of Alvogen’s midazolam. The court also found that Nevada's use of the medicines in executions “will irreparably harm the three companies’ reputations,’ ... result[ing] in lost sales, lost licensing opportunities, weakened employee recruitment, divestitures by investors, increased financing costs, lost opportunities to enter the market for generic drugs, and lost opportunities to develop new branded drugs.” The case is the first time a court has conducted a hearing into state misconduct in acquiring execution drugs. In 2017, drug distributor McKesson Medical-Surgical sued Arkansas and multiple drug companies alleged misconduct by the state in obtaining its execution drugs. Although the Arkansas Supreme Court permitted that lawsuit to move forward, the drugs expired and the parties agreed to dismiss the action before the court could take evidence in the case. 

Nebraska Executes Carey Dean Moore in First Execution in 21 Years

On August 14, 2018, more than two decades after last putting a prisoner to death, Nebraska executed Carey Dean Moore (pictured). The execution—which used an untested drug formula of diazepam (the sedative Valium), fentanyl citrate (an opioid painkiller), cisatracurium besylate (a paralytic), and potassium chloride to stop the heart—took 23 minutes. It was the state's first execution ever by lethal injection. The first drug, diazepam, was administered at 10:24 am, and Moore, who had spent 38 years on death row, was pronounced dead at 10:47. Associated Press reporter Grant Schulte, a media witness who kept a timeline of events during the execution, reported that on three occasions prison officials dropped a curtain that prevented the witnesses from seeing portions of the execution, and that towards the end of the procedure Moore's face turned reddish, then purple. Joe Duggan, a journalist for the Omaha World-Herald, said the media witnesses could see the IV-line connected to Moore's arm, but could not see into the room where prison personnel controlled the flow of the drugs. "[I]t was not possible for us to know exactly when each drug was administered," he said. Brent Martin, reporting for Nebraska Radio Network, compared Moore's executions to the 13 executions he had previously witnessed in Missouri, saying "this was much longer." He also noted that the Nebraska team "approached it a bit differently" than had corrections officials in Missouri, where executions had "become routine." But, he said, "I didn't get any sense that it did not go other than how they planned it to go." Later, prison officials acknowledged the curtain had been lowered after the last drug was administered, preventing the reporters from witnessing Moore's reaction to that drug. Before the execution, Moore gave a written final statement in which he apologized to his younger brother, Don, for "bringing him down," and asked opponents of the death penalty to work on behalf of four men on Nebraska's death row who he said are innocent. Capital punishment has been a contentious issue in Nebraska. In 2015, the state legislature repealed the death penalty over the veto of Governor Pete Ricketts. Ricketts then sponsored a voter referendum to reinstate the death penalty, which succeeded in 2016. The state's last execution had been in December 1997, when Robert Williams was executed in the state's electric chair. The nearly 21-year period between executions in the longest time any state has gone between executions in modern U.S. history.

Drugmaker Sues Nebraska, as 15 Death-Penalty States Oppose Ruling Blocking Use of Drugs in Nevada

Less than a month after a Nevada court halted the execution of Scott Dozier in response to a lawsuit filed by generic-drug manufacturer Alvogen, another drug company has sued Nebraska, seeking to block the use of its medicines in an upcoming execution. The German-based pharmaceutical company Fresenius Kabi filed suit in Nebraska federal court on August 8, 2018 alleging that Nebraska intended to execute Carey Dean Moore on August 14 using drugs manufactured by the company that had been obtained "through improper or illegal means." The lawsuit said the company's distribution contracts with authorized wholesalers and distributors prohibit sales to departments of corrections, and it alleges that Nebraska obtained the drugs "in contradiction and contravention of the distribution contracts," most likely from an unauthorized supplier. Nebraska Attorney General Doug Peterson said the state's execution drugs “were purchased lawfully and pursuant to the State of Nebraska’s duty to carry out lawful capital sentences,” an assertion that cannot be verified because of the state's secrecy practices. The state has refused to identify the source of the drugs it intends to use in Moore's execution, but two of the drugs—the paralytic, cisatracurium, and potassium chloride, the drug used to stop the heart—are manufactured by Fresenius Kabi and only that company makes vials of potassium chloride in the size obtained by the state. 

Nebraska is one of fifteen death-penalty states that have joined in an amicus curiae ("friend of the court") brief in the Nevada Supreme Court on August 6, 2018 urging the court to overturn a restraining order that has prevented Nevada from carrying out executions using supplies of the drug, midazolam, produced by the pharmaceutical company Alvogen. Alvogen's suit alleges that Nevada had obtained the midazolam "by subterfuge" and “intentionally defrauded Alvogen’s distributor” by concealing its intention to use Alvogen’s medicine in Dozier‘s execution. The company's pleadings accused Nevada of “implicitly ma[king] the false representation that they had legitimate therapeutic rationale” for buying the drug and covering up its true intention by having the drug shipped to a state office several hundred miles away from the prison. In addition to issuing the restraining order, the Nevada trial court stayed Dozier's July 2018 execution. Like Fresenius Kabi, Alvogen alleges that the use of its products in executions would damage its corporate reputation and adversely affect investor and customer relations. The amicus brief was filed by 15 of the 30 other states that authorize capital punishment, all with Republican attorneys general—Arkansas, Alabama, Arizona, Florida, Georgia, Idaho, Indiana, Louisiana, Missouri, Nebraska, Oklahoma, South Carolina, Tennessee, Texas, and Utah. The nine death-penalty states with Democratic attorneys general did not join the pleading, nor did six other states with Republican attorneys general. The pleading claims, without providing any factual support, that Alvogen's lawsuit is the "latest front in the guerilla warfare being waged by anti-death-penalty activists and criminal defense attorneys to stop lawful executions." The state officials warn that, if the Nevada Supreme Court allows Dozier's stay of execution to stand, activists will "flood" the courts in other states with similar "meritless" challenges. In 2017, the drug distributor McKesson sued Arkansas to prevent the state from using a supply of the paralytic drug, vecuronium bromide, in executions, alleging that the state had deliberately misled the company to believe that the drug would be used for legitimate medical purposes. The brief asserts that "Alvogen’s meritless claims mirror those rejected by the Arkansas Supreme Court" in McKesson case. However, court records reflect that the Arkansas Supreme Court actually returned McKesson's case to the trial court for further evidentiary development and the case remained active until the expiration of the state's supply of vecuronium bromide rendered the case moot in the Spring of 2018.

Missouri Federal Appeals Court: Journalist's Execution Witness Lawsuit May Proceed

The U.S. Court of Appeals for the Eighth Circuit ruled on July 27, 2018 that Christopher S. McDaniel (pictured), an investigative reporter for BuzzFeed News, may proceed with his lawsuit challenging the Missouri Department of Corrections's policy for selecting execution witnesses. McDaniel, who has written numerous articles exposing irregularities in Missouri's execution procedures, applied to the Director of the Department of Corrections in 2014 to witness executions in Missouri, stating in his witness application that he wanted to observe executions "[t]o ensure that this solemn task is carried out constitutionally." The Department has never responded to McDaniel's application and he has not been permitted to witness any of the 17 executions carried out in the state since then. The lawsuit, filed on McDaniel's behalf by the American Civil Liberties Union of Missouri, alleges that neither McDaniel nor any other person whose witness application "expressed a desire to ensure that execution[s] were carried ou[t] properly and constitutionally" has been accepted as a witness, and that McDaniel also had been rejected as a witness because he has written articles critical of Missouri's administration of its death penalty. Working first for St. Louis Public Radio and laterw for BuzzFeed News, McDaniel's reporting revealed that Missouri had obtained lethal-injection drugs for executions carried out in 2013 and 2014 from an unlicensed out-of-state compounding pharmacy that committed nearly 1,900 violations of pharmacy regulations before it was sold and its assets auctioned off to help repay defaulted loans. In February 2018, he reported that the compounding pharmacy to which Missouri then switched to carry out 17 executions between 2014-2017 had been deemed "high risk" by the Food and Drug Administration because of the company's hazardous pharmaceutical practices. McDaniel reported that the state had paid the company—which was alleged to have engaged in illegal practices, Medicare fraud, and numerous manufacturing improprieties—more than $135,000 for execution drugs. The court wrote that "McDaniel’s allegations support a plausible claim that an applicant’s viewpoint is a factor used by the Director when considering whom to invite as a witness." Though the state argued that McDaniel did not have standing to file suit, the court found "McDaniel’s allegations that the Director’s policies provide an opportunity to exclude McDaniel based on his viewpoint and that the Director has excluded McDaniel and all applicants sharing his particular viewpoint are sufficient to give him standing to press the claim."

Public Health Experts, Generic-Pharmaceuticals Association Warn Lethal-Injection Policies Put Public Health at Risk

State lethal-injection practices may have collateral consequences that place public health at risk, according to briefs filed in the U.S. Supreme Court on July 23, 2018 by public health experts and an association representing generic drug manufacturers. In amicus (or friend-of-the-court) briefs filed in connection with a challenge brought by death-row prisoner Russell Bucklew (pictured) to Missouri's use of lethal injection, the Association for Accessible Medicines (AAM)—a professional association representing generic and biosimilar drug manufacturers and distributors—and eighteen pharmacy, medicine, and health policy experts warn that questionable state practices in obtaining and hoarding drugs for use in executions undermine law enforcement efforts to combat black markets in controlled substances and jeopardize the availability of some medicines for their intended therapeutic use. The AAM, which takes no position on the death penalty or the specific issues in Bucklew's case, told the court that its membership "strongly oppose the use of their medicines ... to carry out executions." The Association wrote: "Like doctors and other medical professionals, many drug manufacturers (including the members of AAM) recognize that they have an ethical obligation to ensure that their products are used only to heal, not to harm. Yet despite many manufacturers’ best efforts, drugs that are essential to the healthcare system—including some that are in short supply—have been diverted to state prison systems for use in capital punishment. AAM and its members cannot support such misuse of their products." The AAM brief stressed that their products are developed and tested for particular approved medical uses, but in executions, "powerful injectable drugs such as sedatives and barbiturates are being used at untested levels for an untested purpose, often without adequate physician supervision." The AAM called "the off-label use of these prescription drugs" in executions "medically irresponsible." Further, they wrote, some of the drugs used in executions that "are considered 'essential medicines' by the World Health Organization ... are in short supply," but have been diverted from medical use by death-penalty states. Citing a 2017 study by The Guardian, the AAM said "four states had stockpiled enough of these drugs to treat 11,257 patients—if the drugs were used as intended for medical treatment rather than in executions." Eighteen public health experts filed a brief in support of Bucklew's lethal injection challenge. The portion of that brief addressing public health issues warned that "States have created serious public health risks in their efforts to conduct lethal injections" and that continued improper practices "could lead to a public health crisis." The health experts argue that states have violated federal law by importing unapproved drugs for use in executions, obtained compounded drugs of questionable quality from unlicensed and secret pharmacies, breached supply chain controls and misled healthcare providers to obtain drugs for executions, and employed secrecy laws to "hide potentially illegal and unsafe conduct from scrutiny." These practices, they say, circumvent and undermine the country's "carefully and extensively regulated [medical] supply chain .... The result is twofold: it undermines federal laws that protect the public health, and it circumvents pharmaceutical companies’ ability to ensure the safety and effectiveness of drugs in the supply chain." 

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.

Nevada Execution Halted On Claims State Obtained Execution Drug Through “Subterfuge”

In response to a lawsuit filed by pharmaceutical manufacturer Alvogen, Inc., a Clark County, Nevada District Judge has stayed the July 11, 2018, execution of Scott Dozier and issued a temporary restraining order barring Nevada from using drugs produced by Alvogen to execute Dozier. Saying Nevada had obtained a supply of the drug-maker's sedative midazolam “by subterfuge,” the multibillion-dollar generic drug company sued Nevada and the state Department of Corrections on July 10 to prevent the state from using its drugs in any execution. The lawsuit alleged that Nevada “intentionally defrauded Alvogen’s distributor” by concealing its intention to use Alvogen’s medicine in Dozier‘s execution and by “implicitly ma[king] the false representation that they had legitimate therapeutic rationale” for buying the drug. In granting the restraining order, District Judge Elizabeth Gonzalez wrote that the misuse of midazolam in an execution would result in “irreparable harm to [Alvogen’s] reputation as a company that produces life-enhancing and life-saving drugs” and that the damage to its business reputation could adversely affect investor and customer relations. Alvogen has a policy not to accept direct orders from prison systems or departments of correction and “does not condone the use of any of its drug products, including midazolam, for use in state sponsored executions.” Alvogen's lawyers said that the company also had sent a letter in April to the governors, attorneys general, and prison directors of all of the death-penalty states in the U.S. expressing “in the clearest possible terms that Alvogen strongly objects to use of its products in capital punishment.” After Nevada's supply of another drug expired and it decided to switch to midazolam, prison officials bought the drug from pharmaceutical distributor Cardinal Health without disclosing its intended purpose. Alvogen said Nevada officials directed Cardinal Health to ship the drug to a state office more than 200 miles from the state prison “to further the implication that the midazolam was for a legitimate medical purpose.” Alvogen's suit is the second time a pharmaceutical company has taken legal action to stop its drugs from being used in executions. In April 2017, McKesson Medical-Surgical sued the state of Arkansas over the use of the paralytic drug vecuronium bromide, but ultimately was unsuccessful in blocking the state from using the drug. The Clark County court has ordered a status conference in this case for September 10. 

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