Firm says use of drug in death penalty against its policies
Add another drug company to the list of potential sources of Alabama's death penalty drugs - a list state officials have long tried to keep secret.
Court documents filed last month in the case of death row inmate Tommy Arthur suggest New Jersey pharmaceutical manufacturer Becton Dickinson could be a maker of the midazolam Alabama uses as the 1st element of its 3-drug execution protocol.
The company, in a written statement, said its drugs are not intended for sale to U.S. prisons, and that its distributors have been warned of that fact. The company will take an "appropriate course of action" against any distributor found selling midazolam to prisons, according to the statement.
The new documents are not the 1st time lawyers have dropped the name of a drugmaker in court, though state officials have long declined to publicly name the sources of their lethal injection drugs.
"A company that's not involved in lethal injection would be very concerned about the potential unfair damage done to them by their association with executions," said Robert Dunham, executive director of the Death Penalty Information Center, a nonprofit which studies the death penalty. "A company that is involved would be rightly concerned about the consequences of being known to be involved."
Alabama hasn't executed an inmate in more than two years. Drugs once used for lethal injection have become scarce as major drug companies - particularly those headquartered in Europe, where there's strong opposition to capital punishment - have backed away from providing those drugs to prison systems.
Several inmates have challenged the constitutionality of the state's current execution drug protocol, which consists of midazolam to kill pain, rocuronium to relax the muscles, and finally, potassium chloride to stop the heart. Inmates claim midazolam doesn't kill the pain of execution and thus violates the ban on cruel and unusual punishment.
For the past 2 years, lawmakers have proposed bills to make the names of Alabama's lethal injection drug suppliers secret. Those bills didn't pass, but state officials still decline to name the sources of their drugs, citing a gag order in Arthur's case. Many of the documents in that case are sealed, and many non-sealed documents contain redacted passages.
Earlier this year, however, state officials included a "package insert" - essentially manufacturer's instructions - for midazolam produced by Illinois-based Akorn Pharmaceuticals as an exhibit in the case. The company denied selling any midazolam directly to the state.
More recent court documents refer to a similar package insert from Becton Dickinson. In a court order issued Friday, U.S. District Judge W. Keith Watkins ruled that Arthur's lawyers could conduct depositions to find out which company's insert best applies to the drugs used in Alabama's executions.
Consequences
When Akorn's package insert surfaced in court documents earlier this year, the company said it "strongly objects" to use of its drugs in executions. Akorn later announced it would restrict sale of midazolam to wholesalers who "use their best efforts" to prevent sale of the drug to prisons.
Becton Dickinson took a similar position in its Tuesday statement, sent by public relations director Troy Kirkpatrick.
"All of our distributor partners have previously received formal notification ... that our products are not intended for use in U.S. prisons including state and federal penitentiaries," the statement read.
Becton Dickinson did $163,905 in direct business with the state so far this year, and $156,162 in fiscal 2014, but all those sales appear to have been to the Department of Public Health, not the Department of Corrections.
Dunham said it's possible for a drugmaker's products to be used in an execution without the company knowing it. But association with lethal injection is increasingly problematic for companies both ethically and from a marketing standpoint, he said.
"A company's good name is worth a fortune," Dunham said.
He cited the example of Mylan, a producer of rocuronium bromide, one of the drugs Alabama uses for lethal injection. According to Reuters, a Dutch public employees' pension fund last week divested itself of stock in Mylan. Mylan has said its drugs are not intended for use in capital punishment, but according to Reuters, pension fund managers thought the company wasn't doing enough to control use of its drugs.
Changing tactics
The judge's order comes as Arthur and other death row inmates search for a new defense in the wake of a U.S. Supreme Court decision upholding the use of midazolam in executions.
An Oklahoma inmate, citing a botched 2014 execution which took more than half an hour, argued that midazolam shouldn't be used to kill inmates. The high court disagreed.
"The prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain," Justice Samuel Alito wrote in the opening lines of the majority opinion. The death penalty itself hasn't been ruled unconstitutional, Alito wrote, and there must therefore be a constitutional way to carry it out.
Lawyers for Arthur, who was convicted in the 1980s murder-for-hire of a Muscle Shoals man, have since argued that Alabama does have alternatives, including the firing squad.
"Execution by firing squad, if implemented properly, would result in a substantially lesser risk of harm than the state's continued use of the d-drug protocol involving midazolam," wrote Suhana Han, attorney for condemned inmate Tommy Arthur, in a court motion.
Arthur has also argued that the state could buy sodium thiopental - once the 1st drug in Alabama's execution protocol - from a drugmaker in India, or could hire a compounding pharmacist to mix the drug pentobarbital in small batches.
Pentobarbital, too, was once used by the state to kill inmates. Arthur challenged the constitutionality of that drug in his original 2011 suit against the state.
"Arthur cannot pretend that he has never adopted the position ... that pentobarbital violates the Eighth Amendment because it will cause him to have a heart attack and suffer a painful death before its anesthetic effects are achieved," lawyers for the attorney general's office wrote in a motion for summary judgment. Attempts to reach a spokesman for Arthur's legal team were unsuccessful Tuesday. Joy Patterson, a spokeswoman for the attorney general's office, said the office would not comment further on the case.
The judge's Friday order blocks Arthur from directly seeking information about the sources of the state's drugs, their expiration dates and any effort by the state to adopt an alternate form of execution.
Discovery in the case must be completed by Nov. 15, Watkins ordered.
Source: Anniston Star, Sept. 1, 2015
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