Arkansas Prisons Suspend Search for Execution Drugs, Ask For Even Broader Drug Secrecy Law

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Unable to legitimately purchase lethal-injection drugs or carry out executions without revealing who manufactured its drugs, Arkansas has suspended efforts to obtain a new supply of execution drugs until state law is amended to keep secret the identity of the drug manufacturers. The Arkansas Department of Corrections confirmed on July 17, 2018 that it had halted its search for execution drugs earlier this year following a November 2017 Arkansas Supreme Court decision requiring the state to disclose portions of the pharmaceutical drug and packaging labels for the drugs it intended to use in executions. Those labels permitted the public and the pharmaceutical industry to identify the manufacturers of the execution drugs, who then sued the state or charged state officials with violating the companies’ contract rights. Solomon Graves, spokesperson for the Department of Corrections said the department has been working with the governor’s and attorney general’s offices on amending the Arkansas Method of Execution Act to prevent disclosure of information that would identify drug manufacturers. “We are not actively looking for additional drug supplies at this time,” he said. Arkansas does not currently have any execution dates set, but it scheduled eight executions in an unprecedented 11-day period in April 2017 in an attempt to carry out the executions before its supply of the sedative midazolam expired. Four of the executions went forward, but not before controversy surrounded the state’s purchase of all three drugs in its execution protocol. Prior to the executions, Associated Press learned that the state’s second drug—the paralytic vecuronium bromide—had been manufactured by Hospira, a subsidiary of the drugmaker Pfizer. Pfizer, which made international news with its May 2016 announcement of strict distribution controls designed to block states from obtaining and using its medicines in executions, informed its drug distributor, McKesson Medical-Surgical, that the sale violated their distribution agreement. McKesson then sued Arkansas, alleging that the state had deliberately misled the company to believe that the drug would be used for legitimate medical purposes. The companies Fresenius Kabi USA, LLC, and West-Ward Pharmaceuticals Corp.—the manufacturers of the potassium chloride that Arkansas used as the third drug in its executions—also attempted to intervene in federal litigation to stay the April executions, writing that “use of their medicines for lethal injections violates contractual supply-chain controls that [they] have implemented … to prevent the sale of their medicines for use in capital punishment.” Following the expiration of its supply of midazolam, the director of the Department of Correction, Wendy Kelley, purchased a new supply of the drug in cash. The package identified a New York company, Athenex, as the manufacturer, who said Arkansas acquired the drug in violation of the company’s agreements with distributors barring the use of its products in executions. McKesson’s lawsuit remained active until the state’s supply of vecuronium bromide expired this Spring and the parties agreed the suit had become moot. However, the expiration of the drug left Arkansas without the means to carry out any executions until it obtains a new supply of the paralytic. Graves said that the Department of Corrections has no intention of resuming its search for execution drugs until the state legislature exempts the suppliers and manufacturers from the state’s public disclosure laws. The legislature does not meet until 2019, at which point the other two execution drugs will have expired.

(John Moritz, Arkansas not actively seeking drug needed for executions, prisons official confirms, Arkansas Democrat-Gazette, July 18, 2018; Max Brantley, State suspends search for execution drug, Arkansas Times, July 18, 2018; Jessi Turnure, ADC: Search for Controversial Lethal Drug Used in Executions Temporarily Suspended, KARK-TV, Little Rock, July 18, 2018; Arkansas, Company Seek to Dismiss Case Over Execution Drug, Associated Press, March 19, 2018; Kelly P. Kissel and Andrew DeMillo, Arkansas got execution drug made by resistant manufacturer, Associated Press, November 9, 2017; Chris Geidner, Arkansas Paid Cash To Secure New Supply Of Execution Drug, Seeks New Execution Date, Buzzfeed News, August 17, 2017.) See Lethal Injection.

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