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As drug companies back away from death row, who will fill the gap?

As drug companies back away from death row, who will fill the gap?


Texas and other states fight to get their fix

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In 1998, Michael Yowell was convicted of killing his parents while trying to steal their money to buy drugs. After the killings, he was arrested and charged with murder. Since he lived in Texas, it was a capital offense; he was eventually convicted and sentenced to death. At the beginning of this month, after 15 years of waiting on death row, Yowell finally made his orders for a last meal and prepared to die from a lethal injection at the state’s hands.

Texas’s criminal justice system executes about one prisoner every month — more than any other jurisdiction in the United States by far. And much like the other 31 states that still carry out executions, lethal injection is Texas’ weapon of choice. It involves injecting enough of a dangerous drug into a convicted criminal’s veins to kill him. This is exactly what Yowell knew he’d face. And in total, his case wasn’t all that unusual.

But Texas got into some trouble recently when the company that produces its execution drug refused to refill the state's supply. While the Lone Star State identified a temporary fix — a company willing to whip up a lethal cocktail in a pinch — Texas’ lethal injection issues mirror similar issues all over the country. These problems could soon force state legislators to rethink the way they conduct executions. If some activists have their way, these problems could challenge whether lethal injections are used at all.

Yowell faced the possibility of losing much more than a court battle

Such a challenge would seemingly be good news for Yowell. On October 1st, he and two other death row prisoners in Texas filed a civil complaint against three high-ranking criminal justice officers. The death row prisoners requested a stay of execution — a delay, so the state could at least test its whipped-up lethal cocktail before using it on a human being. But if Texas’ history was any indication, Yowell faced the possibility of losing much more than a court battle.

He faced the end of his life.

Compounding problems

Regularly used by doctors to treat convulsions, Nembutal is a sedative that’s become useful for executions because it causes respiratory failure — a clean, bloodless death — when administered in high doses. (It’s also used for assisted suicide, which is similarly controversial.)

Lundbeck, the Danish company that long produced Nembutal, announced in July 2011 that it would no longer supply the drug to any government agency for the purposes of executing a person. Later that year, it sold the rights to produce the controversial drug to Akorn, Inc., a pharmaceutical company in Lake Forest, Illinois. The contractual catch, however, was that Akorn had to stick by Lundbeck’s policy; it couldn’t sell Nembutal as an execution drug. While states were generally supplied at the time with enough Nembutal to get them through the next couple years, it seemed clear that a shortage might soon arrive.

Last month, before convicted murderer Arturo Diaz was executed in Huntsville, Texas, the Texas Department of Criminal Justice (TDCJ) admitted that its stash of Nembutal had passed its expiration date. Since expired Nembutal runs the risk of severely maiming a death-row prisoner rather than killing him, Diaz’s attorneys argued that his execution should be delayed.

The state used its generic Nembutal to carry out the execution

They lost that battle, however. He was killed on September 26th using the expired Nembutal. But Texas’s lethal injection problem remained. Michael Yowell was scheduled to face death in two weeks. How would Texas come up with another drug before then?

The answer was to go to a "compounding pharmacy" — a drug maker that produces pharmaceutical products for experimental or unusual situations. Compounding drugs are produced from raw materials and used when a patient has unique medical needs. And because compounding pharmacies are not part of major corporations — and generally do not produce new drugs — they’re not directly regulated by the Food and Drug Administration.

Texas found a compounding pharmacy to produce a generic Nembutal. The state promised the company anonymity; the state would use the pharmacy’s generic Nembutal without publicly revealing any identifying information about the company. But when the Associated Press made a Freedom of Information request with the TDCJ to find the name of that compounding pharmacy, the agency ruled that the newswire’s First Amendment rights outweighed the company’s supposed right to anonymity. When the identity of The Woodlands Compounding Pharmacy was made public, a company spokesman immediately requested that TDCJ return the generic Nembutal and not use it for its intended purpose. Cover blown, it no longer wanted to provide Texas with an execution drug. The state refused; it wouldn’t return anything.

Michael Yowell was pronounced dead a little after 7:00PM Wednesday. The state used its generic Nembutal to carry out the execution.

Do no harm

States have gotten themselves into a bind, explains Richard C. Dieter, executive director of the Death Penalty Information Center in Washington DC. When state legislators started exploring options for lethal injection in the late 1970s and early 1980s, "they wanted something antiseptic and modern," he says. "Hanging someone or killing them in an electric chair were remnants of a bygone era. Those options were barbaric. Lethal injection offered a 20th-century alternative. So states latched on to it." When Texas carried out the first lethal injection on December 7th, 1982, it was seen as the beginning of a new age.

But in recent years, objections have mounted. "These drugs" — such as Nembutal, sodium thiopental, or propofol, the product blamed for Michael Jackson’s death — "are not designed to kill people," Dieter says. And so there’s resistance. It comes not only from anti-death penalty advocates and prisoners on death row, but also from pharmaceutical companies, pharmacists, and doctors.

As an example, the American Society of Anesthesiologists has denounced a decision in Missouri to use propofol in a scheduled October 23rd execution. The group says that the drug's German producer has threatened to ban propofol in the US if it’s used in executions going forward. "All these companies and people have the same connection to a life-serving profession," he says, "so they have no interest in participating in executions."

What’s more, there’s really no business reason why a company would want to be associated with executions. "One execution per month is not going to help a company with its bottom line," Dieter says. "They want to stay in good graces with the state, but what they lose is being seen as a life-saving entity."

"One execution per month is not going to help a company with its bottom line."

Dr. Jonathan Groner, a pediatric surgeon in Columbus, Ohio, is a critic of medicalized executions. Lethal injections were developed to "give executions an air of respectability," he says. But instead, they’ve become "a stain on the face of medicine." He points out that executions were banned in the US between 1972 and 1976, and that since then there have been only two occasions of prisoners being killed by a firing squad. Groner suggests such a death might be more humane than lethal injection. "From what we know about how hearts work when they get hit by bullets, death is almost instantaneous," he says. "[The prisoner’s] lights will go out in a second or two." But with lethal injections, there’s uncertainty. It’s not clear how long the death will take, or how much suffering will be involved as the drug takes a fatal hold on the prisoner’s body. And while there’s always a possibility that a drug might not work the way it’s supposed to — it might leave a prisoner mostly dead rather than deceased — he adds, "there’s no recorded instance of a failed firing squad execution."

Both Dieter and Groner have argued, in general, against the death penalty. Dieter points to death row exonerations — "There’s just too much uncertainly," he says — as reason enough that US courts should abolish the practice. And Groner argues that the United States' status as "the only industrialized nation in the world that still carries out executions" is a black eye for the entire country. But both are realists. [Editor's note: Japan continues to carry out executions at a rate of about five per year. More information about which countries support capital punishment at The Guardian.]

"The death penalty is still constitutional, so some method will be allowed," Dieter says. "You don't have to remove all risk. What you do have to do is strive to have the most humane, least torturous method as possible of carrying out this brutal task."

Groner’s views are even more pragmatic.

"Killing is outside a doctor’s or a pharmacist’s scope of practice," Groner says. "That’s not what we’re trained to do. Prison personnel, on the other hand, they can be trained to kill. So my response is, if you’re going to execute someone, why don't you just shoot 'em?"

Update: The Associated Press reports that Missouri governor Jay Nixon has halted the scheduled October 23rd execution of Allen Nicklasson, a convicted murderer, citing concerns about the use of propofol to kill him. Announced just before noon today, Nixon has ordered the state's Department of Corrections to find an alternative way to perform lethal injections that doesn't involve the drug.