Arkansas will have a more difficult time obtaining additional lethal injection drugs after an unprecedented court challenge by a drug distributor and possible complications during at least one of the four executions the state carried out this month, experts said.
The state launched an ambitious plan to execute eight death row inmates over 11 days to beat the expiration date on one of the three drugs needed under the state’s lethal injection protocol, but four of the executions were halted by courts. Arkansas’ remaining supply of midazolam expires Sunday, and it’s not known where the state will be able to get more of the sedative or its dwindling supply of the other two drugs.
All of the major manufacturers of injectable midazolam have said they do not want their drugs used in executions and most of them have created control systems, including contracts with third-party drug distributors prohibiting the sale of their drugs for use in lethal injections. Some of those companies have even asked wholesalers who sell drug components to compounding pharmacies to sign contracts that they will not sell the manufacturers’ ingredients to compounders that plan to make lethal injection drugs.
"This is a new chapter in this story, and every time we have a new chapter it makes it more and more difficult to obtain drugs and the states’ options get more and more constrained," said Deborah Denno, a professor at Fordham University School of Law and an expert on the death penalty.
Denno said the drug companies have been "incredibly disruptive" in the past. She cited a Missouri lawsuit in 2013 in which intervention by the drugmaker Fresenius Kabi USA was able to stop the state from using propofol, a drug that’s never been used in an execution.
American drugmakers that refused to make sodium thiopental sparked drug shortages at execution chambers nationwide in 2011, forcing many states to look for alternatives. Texas has found a steady stream of pentobarbital from an unnamed compounding pharmacy.
Arkansas is facing a lawsuit from drug distributor McKesson Corp., which wants the state to return its remaining supply of vecuronium bromide. It’s the second drug in Arkansas’ execution protocol.
McKesson argued that a representative of the state misled the company when purchasing the drug last July by using a physician’s license number that implied the drug would be used only for medically approved purposes. Company representatives have said they have contracts with manufacturers saying they cannot sell the drugs for executions.
The Arkansas Supreme Court lifted an order that had blocked the state from using McKesson’s drugs but the underlying court case remains.
A McKesson spokeswoman declined to comment, citing the pending litigation.
With its midazolam set to expire Sunday, Arkansas has no more executions scheduled. The state requires two full doses of each of the three drugs including a backup dose of each in case there is an issue during an execution. It’s not clear how many doses of the other two drugs Arkansas uses to execute prisoners remain in the state’s stash.
Arkansas’ execution protocol requires prison officials to dispose of any drugs that were prepared for an execution, but not used.
An Arkansas Department of Correction spokesman confirmed the state destroyed the unused backup doses prepared for the recent executions, but it was not clear if the prison readied drugs for any of the four inmates whose scheduled executions were blocked by courts.
Denno said the perceived issues in Thursday’s execution of Kenneth Williams, who lurched and convulsed 20 times during the lethal injection, will also signal to drug companies that there might be issues in the state’s protocol.
USING THE SECRECY LAW
The drugmakers and suppliers that don’t want Arkansas to use their drugs said the Department of Correction has hidden behind the state’s execution secrecy law. The law passed in 2015 required the state to keep any information that might identify the makers and sellers of execution drugs a secret.
But the companies said the state has used the law to keep the purchases a secret from the makers themselves. The makers allege Arkansas won’t confirm it has their drugs and promised a third-party distributor in June 2015 that the manufacturers would never know it had violated contracts that prevent the sale of their drugs for use in executions.
McKesson alleges Arkansas used deceitful tactics to buy a replacement batch when one of the drugs expired.
And Correction Department Director Wendy Kelley has testified that she drove to an undisclosed location to obtain the state’s newest batch of potassium chloride from a person who chose to donate the drug rather than create a record of a sale.
State officials have testified all three drug suppliers previously used will not sell or give any more lethal drugs to Arkansas.
"The companies don’t want to be publicly shamed, not for such a small market. You could see even for a small compounding pharmacy, they don’t want to be known as the pharmacy that makes the drugs that kill people," said Dr. Peter Rice, a professor of clinical pharmacy at the University of Colorado School of Pharmacy.
But two of the companies involved in the sale or possible making of the drugs— McKesson and Fresenius— identified themselves in court filings, signaling they care more that the state doesn’t use their drugs than remaining anonymous.
Lauer reported from Dallas.