Pfizer’s Death Penalty Ban Highlights the Black Market in Execution Drugs

Pharmaceutical giant Pfizer made big news last week when it announced a ban on the use of its drugs to carry out the death penalty by lethal injection. “Sweeping controls on the distribution of its products” have clamped shut “the last remaining open-market source of drugs used in executions,” the New York Times reported, calling it a milestone in the fight against capital punishment.

Somewhat buried in the flurry of headlines that followed was the fact that Pfizer has never been known to supply states with execution drugs. It is only after the company acquired a different drug company last year — Hospira Inc., which produced several drugs states have used or intend to use in executions — that Pfizer put such restrictions in place. This doesn’t make its policy any less important: “Pfizer has closed the circle,” said Arizona federal public defender Dale Baich, who litigates lethal injection challenges across the country. “The states can no longer obtain drugs from legitimate and legal sources.” But as Baich and others know too well, many states stopped seeking drugs from legitimate sources a long time ago. Today, most active death penalty states rely on anonymous compounding pharmacies, whose loose regulations vary wildly from state to state, making them dangerously unreliable compared to FDA approved drug companies when it comes to the efficacy of their products. Other states have broken federal law by importing illicit drugs from overseas. In driving states to the underground market, Pfizer’s announcement merely makes official what has already been happening for years.

Take Texas, which has carried out six executions so far this year and has eight more scheduled through the fall. There, prison officials were decidedly unfazed by the news. “It’s not anticipated that Pfizer’s decision will have an impact on the agency’s current ability to carry out executions,” Texas Department of Criminal Justice spokesperson Jason Clark wrote in an email to The Intercept. So where does Texas get its drugs if not through companies like Pfizer? Today, we’re not allowed to know the answer to that question. “State law prevents the disclosure of the identity of the supplier of execution drugs,” Clark wrote, saying only that they come from a “licensed pharmacy that has the ability to compound.” The official rationale for the policy — which became effective last September — is that secrecy is the only guarantee of safety for those companies still willing to supply drugs for executions. “Pharmacies don’t have security details,” Deputy Texas Solicitor General Matthew Frederick told an appellate court earlier this month, opposing a legal challenge to the law. “Their only protection is anonymity. Once you take that away … there’s nothing they can do to protect themselves.”

The problem with such ominous rhetoric is that there is virtually no evidence to back it up. For years, suppliers of lethal injection drugs in Texas could be identified via open records requests, without incident. But in the fall of 2013, a local company, Woodlands Compounding Pharmacy, was revealed to have provided pentobarbital for executions, prompting the owner to complain about “hate mail” and unwanted media attention — and to ask for its drugs back. Some months later, the Texas Department of Public Safety released a threat assessment, warning that pharmacies like Woodlands are a “soft target for violent attacks” and that “publicly linking a pharmacy or other drug supplier to the production of controlled substances to be used in executions presents a substantial threat of physical harm … and should be avoided to the greatest extent possible.” As the Texas Observer reported, the only evidence for such threats offered by Texas officials included a strongly worded letter to Woodlands and a random blog post featuring an image of an exploding head.

Today, lethal injection secrecy statutes exist in some dozen states and counting, under the same pretense of security. “The states have never offered any proof that a manufacturer has been harassed,” said Baich. Yet the claim has become entrenched. In Mississippi, Attorney General Jim Hood recently praised lawmakers for passing a secrecy bill drafted by his office, stressing the need for drug suppliers to “be free from the intimidation and strong-arm tactics of some anti-death penalty activists.”

For years, lawyers and journalists have argued that the real purpose of such laws is to block scrutiny of states’ execution protocols. In effect, they have also “prevented manufacturers from learning how states have gotten a hold of the pharmaceutical products they have been using in executions,” said Robert Dunham of the Death Penalty Information Center. Pfizer’s tight new restrictions, Dunham said, are “designed to counter” such secrecy. With Pfizer’s announcement last week, the most significant challenge will not be overcoming state secrecy to ensure that major drug corporations can keep such promises. The bigger problem is how to hold states accountable to the Constitution as they do business with faceless companies that have no ethical qualms about selling execution drugs. “As compounding pharmacies do this in the dark,” said Maya Foa of the human rights group Reprieve, which has led the effort to convince the pharmaceutical industry to block its drugs for use in executions, “it is just going to a create more of a mess — potentially, more botched executions.”

Thiopental Sodium on a tray, Thiopental Sodium is used as a barbiturate general anesthetic.

Photo: UIG/Getty Images

Agonizing Deaths

The image of abolitionist bullies threatening drug suppliers — or as Supreme Court Justice Samuel Alito put it last year, waging “guerrilla warfare against the death penalty” — is a relatively new invention. Its origin can be traced back to the drug shortages that first set the stage for the current upheaval around lethal injection — and which inspired perhaps the country’s most far-reaching lethal injection secrecy law, in Georgia.

In August 2009, Hospira Inc. ceased production of the anesthetic sodium thiopental (a key ingredient in what was then the standard three-drug protocol in use across the country), after one of its suppliers stopped making a crucial ingredient. At first, Hospira planned to move its production to Italy, but after Reprieve successfully pressured the Italian government to block the export of such drugs for the use of U.S. executions, the company stopped manufacturing the drug altogether.

With their go-to supplier of sodium thiopental no longer an option, death penalty states started seeking other sources — and before long, some disturbing consequences emerged. In 2010, just days after the Arizona Republic revealed that local prison officials had imported sodium thiopental from overseas, Dale Baich witnessed the death of a client named Jeffrey Landrigan, whose execution appeared to go awry. While it was not the dramatic two-hour ordeal later suffered by a different client, Joseph Wood, in 2015, Landrigan’s death was alarming for one lurid detail: He died with his eyes open. Baich would later learn that the sodium thiopental used to kill Landrigan had almost certainly expired. This meant that he was not properly anesthetized when the second drug, a paralytic, kicked in. The inescapable conclusion: Landrigan was conscious and frozen in place as the third drug, potassium chloride, seeped into his veins and stopped his heart — an “agonizing” way to die, according to one anesthesiologist.

The same batch of sodium thiopental used to kill Landrigan in Arizona was also linked to two executions in Georgia around that time — Brandon Rhode in September 2010 and Emmanuel Hammond in January 2011. Both men died like Landrigan, with their eyes open. In an interview for an article I wrote for The Nation in 2011, Hammond’s lawyer said her client’s death had appeared painful — “like nothing I have ever seen before.”

Because Georgia’s open records law at the time allowed the disclosure of the state’s source of lethal injection drugs, Hammond’s lawyers were able to trace the sodium thiopental used to kill him to a strange Britain-based pharmaceutical wholesaler named Dream Pharma Ltd. As I wrote at the time, its headquarters were “a rented space in the back of a driving school in a West London suburb. Its bare-bones website boasts that it can provide ‘discontinued’ and ‘hard to find’ drugs to customers, promising that ‘confidentiality will remain paramount.’” Not long after news broke of the state’s sketchy execution source, the DEA seized Georgia’s supply of sodium thiopental, citing “questions about the way the drugs were imported.”

Following the DEA raid, two things happened quickly. First, Georgia hastily adopted a new drug to replace sodium thiopental: the barbiturate pentobarbital, over the objections of a Danish company named Lundbeck Inc., which warned the state that the drug was not meant for such use. Georgia ignored Lundbeck’s warnings, using the pentobarbital to execute Roy Blankenship, who “jerked his head,” lunged “with his mouth agape” and whose eyes “never closed,” according to one AP reporter in June 2011.

Second, on the urging of the Georgia Department of Corrections, lawmakers drafted a bill to block the release of any information about executions under the Open Records Act. Georgia’s Lethal Injection Secrecy Act, passed in March 2013, classifies as a “confidential state secret” the identity of “any person or entity who participates in or administers the execution of a death sentence” or who “manufactures, supplies, compounds, or prescribes the drugs, medical supplies, or medical equipment utilized in the execution of a death sentence.”

Apart from its assault on transparency, Georgia’s law now meant that condemned prisoners were not entitled to know the source of the drugs that would be used to kill them. This “created a catch-22 for any death-row inmate seeking to challenge Georgia’s lethal injection protocols,” as legal reporter Andrew Cohen wrote at the time. Without any information about where the state procured its drugs, prisoners could not fight their executions on Eighth Amendment grounds — even as they had ample reason to fear a cruel and unusual death. Nevertheless, in 2014, the Georgia Supreme Court upheld the new law, calling the need for secrecy “obvious,” in order to avoid the “risk of harassment or some other form of retaliation” for those involved in executions — despite any lack of evidence that such risks existed.

As secrecy laws have continued to pass, most recently, Gov. Terry McAuliffe of Virginia took a bizarre stance on the matter, urging lawmakers to reject a bill that would make the electric chair the state’s default mode of execution if drugs cannot be found for lethal injection, while pushing to conceal the identity of execution drug suppliers. Absent such a law, McAuliffe argued, “manufacturers will not do business in Virginia if their identities are to be revealed.”

The Pfizer company logo April 27, 2016 in New York.

Photo: Don Emmert/AFP/Getty Images

Product Misuse

By the time Pfizer made its decision to block drugs for executions, Foa had already worked with some two dozen other drug companies, from the U.S. to Europe, to find a way to cut off the supplies for U.S. executions. Contrary to the image of aggressive abolitionists, there was no ambush involved. “From the moment it purchased Hospira, Pfizer wanted a solution,” Foa said.

The first company Foa worked with was Lundbeck — the drug manufacturer who tried to prevent the state of Georgia from using its drugs to kill Roy Blankenship in 2011. In an email to The Intercept, Lundbeck’s communications director, Anders Schroll, recalled what happened. Reprieve contacted Lundbeck soon after the company discovered its “product misuse” in 2011. “We had a constructive dialogue,” Schroll said. This included “a couple of face-to-face meetings in Copenhagen and an active dialogue over the phone and via mail,” Schroll wrote. The company had suffered a wave of bad press over its drugs being used for executions, including an open letter published in The Lancet, in which a large number of doctors said they were “appalled at the inaction of Lundbeck” to prevent pentobarbital from being used in executions. Foa recalls the company acting in good faith — and Schroll said that it was a challenge to find “a way to restrict distribution while continuing to make it available for the small patient population who need it for emergency situations related to seizures. Striking that delicate balance wasn’t easy,” he wrote, “but all things considered, it was a very short time from learning about the misuse of our product to revamping the entire distribution system — just five months — and we did something no other company had achieved until that point, which was to cut off supply to prisons.”

Pfizer did not return multiple emails about its own process. But Foa describes it as similarly collaborative, not antagonistic, as well as much easier than the process with Lundbeck. As the industry has moved toward making such restrictions the industry standard, “the terrain is much more mapped out.”

In the wake of Pfizer’s announcement, the state of the death penalty across the country remains in disarray. As some states have gone backward, passing laws to bring back firing squads and electric chairs, those that insist on keeping lethal injection have proven shameless in their quest. Long after Georgia’s Dream Pharma debacle of 2011, the past few years have shown the absurd (and illegal) sources states have continued to find for their drugs — from “the salesman in India with no pharmaceutical background” who sold drugs to at least four states in violation of federal law, as BuzzFeed reported last fall, to a local hospital in Louisiana that inadvertently sent prison officials 20 vials of hydromorphone in 2014. (“Had we known of the real use,” one official told local news site The Lens, “we never would have done it.”)

Email records obtained by journalists have revealed “a disturbing flippancy” about the process, as reporter Katie Fretland reported in 2014, describing how Oklahoma officials joked in 2011 that, in exchange for helping Texas obtain elusive pentobarbital, they might be able to get “much sought-after 50-yard-line tickets to the Red River Rivalry, a football game between the University of Oklahoma and the University of Texas.” In that state, whose execution protocol was upheld by the Supreme Court just last year, officials have exhibited shocking levels of incompetence and dishonesty when it comes to carrying it out.

Such revelations continue. Less than a week before Pfizer’s big announcement, the ACLU of Northern California released 12,000 pages of records from the California Department of Correction and Rehabilitation (CDCR). Through a similar records request years ago, the local ACLU chapter had discovered that California, too, had sought drugs high and low, including from local hospitals, only to end up with part of Arizona’s illegal shipment of drugs from Dream Pharma. (“You guys in AZ are life savers,” one California official wrote over email in 2010.) Reading the most recent batch of records is like bad déjà vu. One set of documents shows that CDCR yet again contemplated purchasing drugs from a pharmacy in the U.K. “We could do it again …” reads an email message from a consultant, an apparent reference to the disastrous purchase from Dream Pharma.

The documents also revealed a chilling attitude about recent botched executions. Criticizing the “big hoopla” surrounding the 2014 death of Dennis McGuire in Ohio — who writhed and gasped for air, according to witnesses — CDCR attorney Kelly McClease dismissed that ghastly spectacle as “snoring.”

Over email, Ana Zamora, criminal justice policy director for the ACLU of Northern California, said Pfizer’s decision does not stand to affect the death penalty there, since the company “does not manufacture any of the four drugs authorized for use” in the state. “The Pfizer decision, however, increases the likelihood that the CDCR will turn to troubling and costly sources to acquire lethal injection drugs,” she said. And the newly released records show that officials have considered purchasing drugs from “online pharmacies that boast offering cheap drugs without a prescription.” What’s more, records reveal that contrary to the CDCR’s public estimate that such drugs would cost $4,193 per execution, the department appears well aware that “a particular compounding pharmacy” would charge “between $133,080 and $150,000” per execution.

Although California has not carried out an execution in more than 10 years, there are active efforts underway to restart the state’s death machinery. And while there is no secrecy law in California, history suggests it is only a matter of time before someone decides such legislation is necessary. Zamara’s primary concern, she said, is that California has not learned any lessons from recent botched executions in other states. “If the CDCR acquires lethal injection drugs from sources that cannot ensure proper dosage, sterility, potency,” she said, “this will greatly increase the risk that an execution could go terribly wrong in California too.”