As Arkansas plans to continue its execution blitzkrieg Monday, a lawsuit filed by pharmaceutical distributor McKesson claims the Arkansas Department of Correction “leveraged” its medical director’s medical license to purchase vecuronium bromide, a muscle relaxant used in lethal injection.
While physicians have been active in executions as long as the United States has employed capital punishment, the use of a medical director’s license to acquire the drug appears to be unprecedented. The identity of this person has not been made public because sweeping state secrecy laws hide the identities of those involved in executions, including employees of the Arkansas Department of Correction. Typically, if physicians participate, they don’t work for the state and could be any licensed medical practitioner.
Now that McKesson has revealed the role of the ADC’s medical director, the Arkansas Medical Board, whose regulations prohibit the prescription and administration of drugs for anything other than “a legitimate medical purpose,” could take action.
“It is something the medical board is keeping an eye on. We’re evaluating the circumstances to decide what comes next,” said Kevin O’Dwyer, an attorney representing the medical board, which regulates the practice of medicine in the state. When asked about the possible ramifications for ADC’s medical director, O’Dwyer said punishment could include license revocation.
The identity of ADC’s medical director might be known to the board, said Dr. Joel Zivot, an expert in bioethics who teaches surgery and anesthesiology at Emory University. “I don’t think anyone is really clear” about the limits of secrecy laws, he said, which are “broadly encompassing.”
While “it’s clear the state has used these secrecy laws in a most disturbing way,” Zivot said, he warned that a confrontation could lead to a loss of medical board oversight, because of the state’s secrecy laws.
Doctors in Missouri, Georgia, and North Carolina have all admitted to participating in executions. Those disclosures sparked outrage, and attempts were made to discipline the doctors in each case. The North Carolina Medical Board even brought charges against the state’s department of corrections for its use of physicians for lethal injections, but in 2009 the state’s Supreme Court ruled that a 1909 law that requires physicians to “certify the fact of the execution” supersedes the medical board’s authority.
Such rulings, said Zivot, coupled with secrecy laws mean that “the chief physician of the state is no longer the medical board, it’s the governor,” who signs the death warrants of condemned inmates and keeps the identities of executioner-doctors secret. “This is very troubling.”
The revelation that ADC’s medical director used state credentials to obtain controlled substances for lethal injection raises the question of how often states are committing similar acts.
Jennifer Moreno, a staff attorney with the University of California, Berkeley’s Death Penalty Clinic, told The Intercept that it’s difficult to know exactly how frequently this occurs, but it appears states are increasingly turning to doctors and pharmacies to acquire drugs. Obtaining medications used for lethal injection has become more difficult over the past decade, thanks to advocacy work that motivated pharmaceutical companies to place distribution controls on their goods that prevent medications from being sold for executions.
In response to these controls, many corrections departments turned to third-party middlemen such as willfully ignorant distribution companies or international pharmaceutical companies. The Food and Drug Administration has cracked down on these arrangements, however. On April 20, the same day Arkansas executed Ledell Lee, the FDA settled a two-year standoff with Texas and Arizona by blocking their attempt to import the banned anesthetic sodium thiopental from a shady middleman based in India named Chris Harris. The FDA crackdown has led states to purchase drugs using medical licenses to “nominally comply with what the law requires to purchase drugs,” Moreno said.
Hospitals and other legitimate purchasers of controlled substances must be accredited by the Drug Enforcement Administration. In 2011, Texas was caught using expired DEA accreditation from a hospital that was closed in 1983 to purchase pentobarbital. Louisiana similarly used DEA forms to mislead Lake Charles Memorial Hospital into selling 20 vials of hydromorphone in 2o14. The hospital later said it assumed the drugs were needed for patients.
Compounding pharmacies, which historically produced made-to-order drugs for patients who couldn’t take commercially made medications due to conditions like allergies, also produce medications meant for lethal injection. At least 10 states have used these pharmacies to obtain lethal injection drugs, according to the Death Penalty Information Center. Though many have been pressured to end the practice, some compounding pharmacies continue to produce the drugs. There are also examples of private physicians prescribing these drugs for inmates so states could acquire them, Moreno said.
These actions fall into a legal gray zone. Even Texas, which allegedly violated federal drug laws by using expired DEA credentials, faced no repercussions. The U.S. Supreme Court has affirmed the constitutionality of lethal injection, and states believe the ends justify the means. As Lee Short, Ledell Lee’s former attorney, told The Intercept last week, “You’d have to find a prosecutor that would press charges.”
Zivot believes lethal injection is at odds with the ethical obligations of a physician. He cites numerous ethics recommendations, including those of the American Medical Association, that say state-sanctioned executions cannot be aided by licensed physicians.
Arkansas, Zivot said, “is trying to suck and blow at the same time. They’re claiming on the one hand to use licensed providers. On the other hand, they’re mocking these things. The license doesn’t allow for these things to take place.”