America Is Stuck With the Death Penalty for (At Least) a Generation

With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

The Sordid Ways Death-Penalty States Obtain Execution Drugs

This piece was published in partnership with the Influence.

One afternoon, Donnie Calhoun, owner of Calhoun Compounding Pharmacy in Anniston, Alabama—"Compounding for Life's Problems"—came back from a meeting to find a strange request from the Alabama Department of Corrections. The girl who'd answered the phone had written the question down on a notepad: Did he want to make a lethal-injection drug that would be used to carry out an execution?

"I went, what? They do this?" Calhoun recalled. He called them back and let them know that he would not make a drug that could be used to kill. "For me, as a healthcare professional, I want to help people live longer. The last thing I want to do is help someone die."

Other sterile-compounding pharmacists in the state were similarly unenthused about requests to help Alabama execute its death-row inmates. Of the nearly 30 compounding pharmacies contacted by the state, all refused, according to court records. "Of course, we said absolutely not," says one of the owners of Eagle Pharmacy in Hoover, Alabama. "It's something no one wants to do, and it's quite understandable."

Another pharmacist in Virginia adds that someone from the attorney general's office recently popped into his store and asked about lethal injection drugs. "No one will do it," he says. "Maybe you should try executing them with heroin," the pharmacist wise-cracked about a drug that's a whole lot easier to obtain in the state of Virginia.

Life is getting increasingly complicated for officials in states intent on carrying out the death penalty.

For the past few years, executions have been hindered by an unlikely obstacle: the moral compass of the pharmaceutical industry—or, more precisely, Pharma's concern over bad PR.

This is especially evident in Europe, where there's widespread opposition to the US death penalty. The EU, which bans capital punishment, also prohibits the sale of drugs for lethal executions in America, so pharmaceutical companies that do business in Europe have to actively take steps to ensure their products aren't used in American executions. Many large companies not only refuse to make drugs for lethal injection but make their distributors sign contracts forbidding them from selling drugs to US Departments of Correction. Many have written US states asking that they don't use drugs they already have in stock.

Of course, that hardly guarantees that their product won't end up in a syringe in an execution chamber: States tend to ignore their requests that their medicine isn't used to kill.

Documents obtained by the Influence show that two of the substances in Virginia's stash of execution drugs—rocuronium bromide to induce paralysis and potassium chloride to stop the heart—were manufactured by Mylan and APP Pharmaceuticals respectively. Both companies have European branches and have denounced the use of their drugs in executions.

There are clear incentives for doing this: In 2014, Mylan lost $70 million when a German investor pulled out, after it was discovered Alabama was using Mylan-produced rocuronium bromide to put prisoners to death. The drug was part of a previously untested execution cocktail, according to NBC News.

In October 2015, Mylan published a statement decrying the use of its drugs for capital punishment:

"Recently Mylan received information indicating that a department of corrections in the US purchased Mylan's rocuronium bromide product from a wholesaler for possible use outside of the labeling or applicable standard of care. Mylan takes very seriously the possibility its product may have been diverted for a use that is inconsistent with its approved labeling or applicable standards of care."

Mylan confirms to the Influence that the Department of Corrections it wrote in 2015—asking that the drugs only be used for approved-medicinal purposes, not death—was the one in Virginia.

"Mylan takes seriously the possibility that one of its products may have been diverted for a use that is inconsistent with its approved labeling," the company wrote in 2015. "We appreciate that the Department of Corrections may purchase Mylan products for therapeutic purposes. Nevertheless, we would request your assurances that the Department of Corrections has not acquired Mylan's rocuronium bromide or any other Mylan product for a purpose inconsistent with their approved labeling and applicable standards of care, and that it will not do so in the future."

"Pharmaceutical companies have never wanted medicines they make to save and improve the lives of patients used in executions designed to end the lives of prisoners," says Maya Foa, director of the death-penalty team at Reprieve, an advocacy organization for criminal justice. "They have taken concrete steps to prevent this by implementing rigorous distribution controls to prevent sales of these medicines to Departments of Corrections for use in lethal-injection executions. States like Virginia should respect the wishes and interests of the industry and stop the misuse of medicines in executions."

More documents obtained by the Influence indicate the wholesaler that sold Mylan's drugs to the state of Virginia before the company put contractual controls in place was Cardinal Health—a large drug distributor based in North Carolina.

There's no evidence that Cardinal Health has sold drugs to Department of Correctionssince the companies instituted their controls. It's a sign that the public pressure campaigns of groups like Reprieve will continue to diminish the drug supply as the drugs in stock expire.

Alfredo Prieto was killed by the state of Virginia on October 1, 2015. The Virginia Department of Corrections confirms that he was executed using Mylan's rocuronium bromide and APP's potassium chloride. The latter drug has effects likened to "being burned alive from the inside," if the prisoner is not fully sedated.

The potassium chloride from APP expired this June, according the the Virginia Department of Corrections. But the Mylan-produced rocuronium bromide is good until 2017.

Somehow, using pharmaceutical companies' drugs despite their protests isn't even the sketchiest way states have gone about conducting lethal injections.

A few years ago, Texas, Arizona, and Nebraska paid $80,000 to a businessman to obtain the sedative sodium thiopental from India. That plan went awry when the FDA confiscated the drugs in 2015—turns out, you're not allowed to order large quantities of powerful barbiturates from foreign countries via mail.

When a Nebraska official asked the vendor for a refund, he (obviously) declined, pointing out that he'd met his end of the bargain. The FDA is likely still warehousing them, Chris McDaniel reported for Buzzfeed.

The shady sources of drugs and the secrecy surrounding execution protocols have had nightmarish outcomes. In 2010, the state of Arizona likely used an expired batch of sodium thiopental from overseas to sedate Jeffrey Landrigan before administering the paralytic, as Liliana Segura reported at the Intercept.

Because the sedative forming the first part of the execution-drug trio had likely expired, Landrigan was probably fully conscious when the second drug paralyzed him, and when the third drug stopped his heart. His eyes were open when he died.

Neither does using a US pharmacy to obtain execution drugs guarantee that things will be handled professionally.

In 2014, the Apothecary Shoppe, a compounding pharmacy in Tulsa, Oklahoma—"Because your prescription matters"—was revealed as the source for lethal-injection drugs used in three Missouri executions.

A year later, regulators inspecting the pharmacy found more than 1,000 code violations—including questionable sterilization practices and drug potency, Buzzfeed reported. The Apothecary Shoppe had also fudged the expiration dates on its drugs.

As Buzzfeed pointed out, years before, Missouri's death-row inmates had expressed their concerns that products made by compounding pharmacies didn't "meet the requirements for identity, purity, potency, efficacy, and safety that pharmaceuticals under FDA regulation must meet."

The state dismissed such concerns.

Click here to read the full article

Source: Vice, Tina Ganeva, July 31, 2016

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