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.”