The State of Nevada has scheduled the execution of Scott Dozier for July 11, 2018.  The execution method will be lethal injection.  It is the state’s first execution in 12 years.

On Tuesday, the Nevada Department of Corrections announced that the Dozier Execution will involve the use of the following three drugs:

There are many reasons to be concerned about this particular execution cocktail.  Among them:

  1.  Cisatracuriam was enough of a concern that Nevada’s Eighth Judicial District Court blocked Mr. Dozier’s execution last fall because of this drug.  (Read the Nevada Supreme Court’s overturning of that decision in its May 2018 Order, which allows the execution to proceed.)
  2.  Midazolam has been approved for use in executions by the Supreme Court of the United States (see Glossip v. Gross).  However, that does not mean it is not worrisome:  it took two hours for Joseph Wood to die during his execution by the State of Arizona.  (Read the eyewitness account by reporter Michael Kiefer here.) Arizona refuses to use midazolam in any future executions.
  3. Fentanyl has never been used in an execution.

For more, read “Nevada execution plan sedative blamed for troubles elsewhere,” written by Ken Ritter for the Associated Press and published in the Miami Herald on July 5, 2018.

Our past discussions regarding lethal injection drugs include:

This week, the State of Oklahoma announced that it is forgetting all about lethal injections because it has not been able to get the necessary toxic drugs to use for executions.

Gas Chamber in Oklahoma

Oklahoma’s going back to nitrogen.  That’s right.  The gas chamber will be the method of execution in the State of Oklahoma from now on.

Tennesee and Arkansas

Meanwhile, the Tennessee Supreme Court just nixed the Tennessee Attorney General’s request to hurry up and schedule eight men to die before June 1, 2018.  That’s the expiration date of the state’s supply of one of its lethal drugs needed for its lethal injection cocktail. 

Brings to mind Arkansas last year, when it had a problem with its midazolam and tried to execute 8 men in less than two weeks. 

See: Arkansas Plans 8 Executions in 10 Days: Two at a Time

How Much Longer for Lethal Injection Executions?

Which begs the question, how much longer are we going to have lethal injection executions in this country?  How fast are states going to follow Oklahoma’s lead?

See: Firing Squad, Gas Chamber, Electrocution for Executions?

 This week, the Supreme Court of the United States declined to consider the case coming out of Texas, where Death Row inmates petitioned SCOTUS to review their claims that Texas’ use of pentobarbital in lethal injection executions is cruel and unusual punishment.

Seems Texas has a stash of pentobarbital that it got from a compounding pharmacy and Texas isn’t sharing the identity of its drug supplier.  One key factor here:  how old is this stuff, and how far beyond its expiration date.  

Given that the High Court’s action this week, it appears the Lone Star State is free to proceed with lethal injections using its secret drug stash.  Ditto other states with similar Death Row drug pantries.  (At least for now.)

See: Texas Has A Top-Secret Execution Method

Executioner’s Drug Supply

What’s happening here?  For states that approve of capital punishment, there’s a growing crisis because they are finding it harder and harder to get the drugs needed for their execution protocols. The inmate is scheduled to die by lethal injection, but that’s only going to happen if they’ve got the drugs.

Either the big drug companies are refusing to supply executioners with the drugs, or Big Pharma simply stopped manufacturing them.  

See Pfizer Bans Use of Its Products in U.S. Executions

States have tried to find solutions to their supply problem.  Some looked to foreign markets.  Attempts to shop overseas have been thwarted by the Department of Justice. 

See DEA is Grabbing Up All the Sodium Thiopental? No Wonder Pentobarbital Is Popular in Executions

Others tried to change the lethal drug cocktail recipe.  In order to continue executing under the lethal injection method, there were some who altered the drugs contained in the traditional lethal three-drug cocktail.  Others tossed out the idea of a cocktail and went forward with a single drug protocol as an execution device. 

So, when states can find lethal execution drugs, it’s a big deal.  They place big orders so they have a secure supply for the future.  And they keep their suppliers secret, worried that others will pressure the supplier to stop providing execution drugs or that these suppliers will be snapped up by competing states in need of lethal drugs themselves. 

Consider Missouri. 

Back in 2014, Missouri grabbed a bunch of phenobarbital and held it as its lethal execution inventory.  The supplier’s name was given a code to be used in official documents to keep the identity of the pharmacy secret.

Of course, lawsuits were filed to try and reveal the supplier’s identity.  Many of these suits were filed by Death Row inmates seeking to know who the source of their chemical executioner. 

Recently, BuzzFeed revealed that Missouri’s drug supplier is a pharmacy named Foundation Care.  Seems Foundation Care has a reputation for “hazardous pharmaceutical procedures” – but whether or not it’s still available as a supplier of execution drugs is in doubt. 

The compounding pharmacy was purchased by Centene Corporation, and in the BuzzFeed report Centene insists that “Foundation Care has never supplied, and will never supply any pharmaceutical product to any state for the purpose of effectuating executions.”

Nevermind that BuzzFeed has 2 sources confirming Foundation Care supplied the lethal drugs for 17 Missouri executions.

So, has the source dried up?  Dunno. How much does Missouri have in its execution pantry?  Dunno.

Read the complete BuzzFeed expose, written by Chris McDaniel, entitled "The Secretive Company Behind Missouri’s Lethal Injections." 

What Happens Next?

Something else to consider here:  if the states cannot find lethal drugs, or they cannot use the drugs they have, then will this stop the executions? 

Or will it push states to consider older execution methods, which are still legally available to them like the electric chair, gas chamber, firing squad, or hanging?

See:

 

 

 

 The thing about lethal injection is that it’s an execution method usually built around a combination of drugs.  And those drugs might not be the same.

Indiana 3-Drug Combo Voided by Indiana Court

For example, in Indiana the drug combination protocol established by the Indiana Department of Corrections was: (1) methoexital; (2) pancuronium bromide; and (3) potassium chloride.  The Indiana Court of Appeals nixed the use of this drug cocktail this month.  

For details, read their decision in Ward v. Carter, and the discussion at DeathPenaltyInfo.org

SCOTUS Dissent By Sotomayor Questions Use of Midazolam

This month, Justice Sotomayor voiced her concerns over using midazolam in a lethal injection in her dissenting opinion in Arthur v. Dunn, writing:

"I continue to doubt whether midazolam is capable of rendering prisoners insensate to the excruciating pain of lethal injection and thus whether midazolam may be constitutionally used in lethal injection protocols."

Read the full dissent here. 

So, is this a hint that midazolam’s days are numbered as a method of execution?  And if it’s ruled out, then will states simply find another drug to use in its stead?

For more on this issue, check out:

In Mississippi (and elsewhere), the lethal injection method of execution is so problematic these days that state governments are considering the return to past methods of killing people in capital punishment sentences.

Firing Squad

The Mississippi legislature had been considering the firing squad.  Read, "Mississippi considers firing squad as method of execution," for details.  That got nixed

The firing squad has its proponents.  Among them, Alabama Death Row Inmate Thomas Arthur who fought all the way to the U.S. Supreme Court for the right to die by firing squad instead of lethal injection.  He lost, but not without the support of Justice Sonia Sontomayor.  Read her dissent here.

Of course, most people do not like the idea of firing squad executions.  It’s not a popular alternative to lethal injection.  For more, read "Is The Firing Squad More Humane Than Lethal Injection?" by Amelia Thomson-DeVeaux in FiveThirtyEight.

Electric Chair and Gas Chamber

Mississippi is moving forward with proposed legislation that will allow either electrocution or the gas chamber as execution methods if lethal injection is not possible.  Mississippi has not executed anyone in five years, in large part because of its problems with lethal injection drug issues.

Last Thursday, the Mississippi Senate approved a bill that allows for either alternative and sent the proposal over to the Mississippi House for consideration. 

It’s looking likely that this may get passed and executions will resume in Mississippi.  But what will the public think?

States With Alternative Methods of Execution Already On the Books

Of course, some states already have options in the law to the lethal injection method of execution.  Mississippi’s dilemma is that lethal injection was the only legal execution method for the state. 

States like Florida and Utah?  They have options. 

For a discussion of states who already have legal alternatives to lethal injection, read our post, "Returning Death Penalty to Other Execution Methods On the Books."

 

The State of Missouri is buying its lethal injection drugs from a pharmacy.  The identity of that supplier is a secret.

Does Pharmacy Have Constitutionally Protected Speech Over Products It Sells?

The supplier has provided the drugs used in 16 executions in the State of Missouri.

Mississippi Death Row inmates have a court fight going on over Mississippi’s lethal injection methods, and in that suit they have subpoenaed the Missouri Department of Correction’s drug source information.  It’s a part of their arguments regarding Mississippi, and they are comparing what happens in other states, too.

Here’s the question:  is the drug supplier protected by the First Amendment of the U.S. Constitution? Can its identity be kept secret under an argument that it’s related to political speech?

Whattha? 

Read the analysis of this argument by Harvard Law Professor Noah Feldman as published in Bloomberg News here. 

This week, Pfizer banned the use of its drug products in U.S. executions — or anywhere else for that matter.  Pfizer isn’t setting precedent here, as much as getting in line behind almost two dozen other drug manufacturers that have already announced a company ban on the capital punishment market.

Pfizer Bans Use of Seven Pfizer Products in Lethal Injection Executions

From Pfizer’s news release (emphasis added):

Pfizer’s Position on Use of Our Products in Lethal Injections for Capital Punishment

Pfizer’s mission is to apply science and our global resources to improve health and well-being at every stage of life. We strive to set the standard for quality, safety and value in the discovery, development and manufacturing of medicines.

Pfizer makes its products to enhance and save the lives of the patients we serve. Consistent with these values, Pfizer strongly objects to the use of its products as lethal injections for capital punishment.

Pfizer’s obligation is to ensure the availability of our products to patients who rely on them for medically necessary purposes. At the same time, we are enforcing a distribution restriction for specific products that have been part of, or considered by some states for their lethal injection protocols.

These products include pancuronium bromide, potassium chloride, propofol, midazolam, hydromorphone, rocuronium bromide and vecuronium bromide.

Pfizer’s distribution restriction limits the sale of these seven products to a select group of wholesalers, distributors, and direct purchasers under the condition that they will not resell these products to correctional institutions for use in lethal injections. Government purchasing entities must certify that products they purchase or otherwise acquire are used only for medically prescribed patient care and not for any penal purposes.

Pfizer further requires that these Government purchasers certify that the product is for “own use” and will not resell or otherwise provide the restricted products to any other party.

Pfizer will consistently monitor the distribution of these seven products, act upon findings that reveal noncompliance, and modify policies when necessary to remain consistent with our stated position against the improper use of our products in lethal injections. Importantly, this distribution system is also designed to ensure that these critical medications will remain immediately available to those patients who rely on them every day.

ABOUT THESE PRODUCTS: Propofol, pancuronium bromide, midazolam, hydromorphone, rocuronium bromide, vecuronium bromide and potassium chloride are FDA-approved, medically necessary drugs administered by licensed medical professionals, thousands of times a day, in efforts to treat illness or save the lives of patients around the world. They are well established within the medical community and continue to serve important needs in surgical procedures and other treatments.

Pfizer offers these products because they save or improve lives, and markets them solely for use as indicated in the product labeling.

 

Here’s the question:  are controversies surrounding the drug or drugs used in lethal injection executions enough to halt capital punishment altogether?  Even though there are other, legal methods of execution on the books? 

Consider the following three examples of executions not going forward because of drug issues:

1.  Missouri Execution Halted Over Pentobarbital Issue In Man With Brain Tumor

Yesterday, the United States Supreme Court ordered the execution of Ernest Lee Johnson by the State of Missouri be stayed while legal issues are resolved in his case.  The stay was none too soon:  Johnson was scheduled to die yesterday. 

The first issue:  if the lethal injection method will be cruel and unusual in his case because of the pentobarbital used by Missouri (source unknown) might interact with his brain tumor and cause painful seizures.  The second issue:  whether or not this man should be executed because he suffers from mental disabilities.  (His IQ has been tested at 63.)

2.  Ohio Delays Executions Until 2017

Ohio can’t find drugs to use in its lethal injection executions.  So all the inmates on Ohio’s Death Row have received a stay of sorts:  now, Ohio’s execution schedule begins in January 2017 and continues through August 2019.  There are 25 executions scheduled during this time period.

From its Department of Rehabilitation and Correction (go here for full release including revised schedule with individual dates and names):

Today the Ohio Department of Rehabilitation and Correction (DRC) announced revised execution dates for twelve inmates.    DRC continues to seek all legal means to obtain the drugs necessary to carry out court ordered executions, but over the past few years it has become exceedingly difficult to secure those drugs because of severe supply and distribution restrictions.  The new dates are designed to provide DRC additional time necessary to secure the required execution drugs.
 

3.  Oklahoma Delays Executions At Request of Attorney General

We all know that Oklahoma has had some serious problems with the lethal injection method of execution.  After all, Glossip v. Gross comes out of Oklahoma — where Richard Glossip, Benjamin Cole, and John Grant, challenged the use of midazolam in the three-drug lethal injection cocktail, arguing that three executions showed that the drug failed to stop pain.  SCOTUS ruled against them back in June.

It was also Oklahoma where Richard Glossip just had his execution stayed at the last minute by the Governor.

Why?  Apparently, they were about to use the wrong drug in the execution, potassium acetate.  The correct and approved drug for lethal injection in Oklahoma is potassium chloride, NOT potassium acetate.    

Even more disturbing:  Oklahoma officials are now acknowledging that the wrong drug, potassium acetate, was used in the January 2015 execution of Charles Warner.

This is the same state that botched the execution of Clayton Lockett, remember.

Now, Oklahoma executioners face a revised execution schedule that delays any executions.  The Attorney General for the State of Oklahoma has asked that all executions be stayed there until they can get this drug problem resolved.
 

This week, the Supreme Court of the United States issued its ruling in Glossip v. Gross .  Many  thought that the possibilities ranged from (1) outlawing the use of the single drug midazolam; (2) outlawing the lethal injection method of execution in all forms; or (3) reconsidering capital punishment entirely. 

 

Few were ready for what resulted here:  Oklahoma won on all points. 

Glossip: Oklahoma Can use Midazolam

Not only is the death penalty alive and well in this country today, so is lethal injection as a form of execution and the use of midazolam in a lethal injection as was used by the State of Oklahoma in the horrific execution of Clayton Lockett last year.

Wow.

Read the opinion and all its dissents here.

Read the past coverage we’ve had here on the blog regarding lethal injections here (list of our 101 posts and counting).

Terry Lenamon: "It’s a Wake Up Call."

And for Terence Lenamon’s take on things, check out his interview here in "Supreme Court Kills Anti-death Penalty Argument – or Does It?" by Zosha Millman on the LexBlog network’s online publication. 

Executions need executioners. One of the challenges to the lethal injection method of execution in the United States involves the drugs used in the process, and we post about those controversies (and the arguments being made in various courts) regularly.

However, another serious concern regarding injecting drugs into a human being in order to carry out a sentence of death involves who acts as executioner.

Doctors and Pharmacists

Doctors take an oath dedicating themselves to saving lives, not ending them. Physicians are vocal about their opposition to participating in executions involving lethal injections.

Which means it has been difficult finding people to do the job, and in some executions pharmacists have been the solution to the problem of finding an execution to inject the drug cocktail (or the single drug) used for capital punishment in that state.

Recently, the national organization that represents pharmacists came out officially against participating in executions involving lethal injections.

It doesn’t stop an individual pharmacist from participating, but it sure does discourage it. 

Their press release:

APhA House of Delegates Adopts Policy Discouraging Pharmacist Participation in Execution
 

March 30, 2015

"The American Pharmacists Association discourages pharmacist participation in executions on the basis that such activities are fundamentally contrary to the role of pharmacists as providers of health care.”

WASHINGTON, DC – The American Pharmacists Association (APhA) House of Delegates today voted to adopt a policy discouraging pharmacist participation in executions. The House of  Delegates met as part of the 2015 APhA Annual Meeting & Exposition, APhA2015, in San Diego.

The policy states: “The American Pharmacists Association discourages pharmacist participation in executions on the basis that such activities are fundamentally contrary to the role of pharmacists as providers of health care.”

APhA Executive Vice President and CEO, Thomas E. Menighan, BSPharm, MBA, ScD (Hon), FAPhA, stated, “Pharmacists are health care providers and pharmacist participation in executions conflicts with the profession’s role on the patient health care team. This new policy aligns APhA with the execution policies of other major health care associations including the American Medical Association, the American Nurses Association and the American Board of Anesthesiology.
 

This new policy statement joins two policies previously adopted by the APhA House of Delegates:

Pharmacist Involvement in Execution by Lethal Injection (2004, 1985)

1. APhA opposes the use of the term "drug" for chemicals when used in lethal injections.
2. APhA opposes laws and regulations which mandate or prohibit the participation of pharmacists in the process of execution by lethal injection.