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.”

Bucklew’s case, which will be heard by the U.S. Supreme Court during the 2018-2019 term, also drew support from former judges and prosecutors, former corrections officials, and the American Civil Liberties Union (ACLU). In addition, while not taking a side in Bucklew’s case, the American Medical Association filed a brief that raised concerns about doctor participation in executions.

Bucklew suffers from a rare medical condition, cavernous hemangioma, that has left him with blood-filled tumors on his face, neck, and throat. He claims that he would choke on his own blood and suffocate if the state tried to execute him by lethal injection and that such an execution would violate the Eighth Amendment ban on cruel and unusual punishment.

The ACLU drew on international law and standards of decency to conclude that Bucklew’s execution would be unacceptable, writing, “Asphyxiation in one’s own blood for four minutes until one dies certainly qualifies as torture or cruel, inhuman, or degrading treatment or punishment, and, as such, is absolutely prohibited by international law.”

Former correctional officials argued that participation in executions carries a heavy toll for prison staff, and that problematic executions, like Bucklew’s is predicted to be, are particularly difficult. “Such executions do not serve the State’s interests in finality or justice. Instead, they make public servants parties to barbarism,” they wrote.

A brief by former judges, prosecutors, and other law enforcement officials urged the Court to ensure Bucklew is given due process: “Where inmates with unique medical conditions make substantial showings that an execution process is sure or very likely to cause needless suffering, courts should make every effort to ensure that the parties are able to litigate the claims.”