Capital Punishment in the United States Explained

In our Explainer series, Fair Punishment Project lawyers help unpackage some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines - like bail, civil asset forfeiture, or the Brady doctrine - so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers monthly to keep them current. Read our updated explainer here.
To beat the clock on the expiration of its lethal injection drug supply, this past April, Arkansas tried to execute 8 men over 1 days. The stories told in frantic legal filings and clemency petitions revealed a deeply disturbing picture. Ledell Lee may have had an intellectual disability that rendered him constitutionally ineligible for the death penalty, but he had a spate of bad lawyers who failed to timely present evidence of this claim -…

Alabama's execution drugs may be close to expiring

In the past year, two states have seen their lethal injection drugs expire — forcing state officials to search for new drugs or scrap executions altogether.

It’s possible Alabama could soon face a similar hurdle.

A number of factors — the pace of executions, new information about the state’s last purchase of the drugs and the shelf life of the state’s drugs — suggest that Alabama could be out of drugs in about a year, if it isn’t already.

Any estimate of the timetable requires guesswork, though, because the Alabama prison officials have been secretive about when and where they get the drugs used in executions.

Robert Dunham, executive director of the Death Penalty Information Center, said states aren’t trying to keep the drugs secret from the public, but rather from the makers of the drugs. 

What follows are questions and answers on the topic:

Can execution drugs really expire?

Yes. Two states, Arkansas and Florida, recently acknowledged that they could no longer use the drugs they’d acquired for executions because the drugs were past or near their expiration dates.

Obviously, expiration dates and other rules are meant for the safety of patients who are trying to heal, not convicts the state is trying to kill. Still, states are under pressure to follow federal rules for the use of drugs — particularly after Alabama and other states got into trouble with the Drug Enforcement Agency in 2011 for illegally obtaining its supply of an earlier execution drug, sodium thiopental.

Alabama may have already passed a drug expiration deadline once in the past. In 2014, after nearly a year without an execution, state officials acknowledged that they couldn’t execute more inmates because the state’s supply of execution drug pentobarbital had run out.

It’s unclear whether the state had used all its drugs or let its drugs expire.

Later that year, the state switched to a new drug, midazolam.

How hard can it be for a state government to get these drugs?

Pretty hard, actually. Opposition to the death penalty is strong in Europe, where many drug manufacturers are headquartered, and European drug companies years ago began shutting down sales of execution drugs to prison systems in the United States.

More recently, U.S. companies and distributors have joined in, partly because professional associations for doctors and pharmacists have expressed their opposition to members’ participation in executions.

In 2014, state prison officials campaigned for a bill that would make the names of drug suppliers a secret, in hopes of protecting suppliers from political pressure. That bill didn’t pass, but the state still refuses to release the names of its drug suppliers.

Manufacturers are genuinely skittish. When drugmaker Akorn was mentioned in an Alabama death penalty appeal in early 2015, the company quickly moved to declare it would never intentionally sell drugs for executions, and even asked for the state to return any drugs it had. When drugmaker Becton-Dickinson was mentioned in court documents later that year, that company also declared that its drugs weren’t meant for use by U.S. prison systems.

Earlier this month, the state prison system’s main drug supplier, Corizon Health, acknowledged that it had never supplier drugs for an execution either. Since then, The Star has also contacted drugmakers Baxter, Fresenius Kabi and West-Ward. All of them said they weren’t the suppliers of Alabama’s execution drugs.

So who’s really supplying the drugs?

It’s not 100 percent clear that either Akorn or Becton-Dickinson are the actual makers of the drugs Alabama has used in its most recent executions. State officials used technical information from both companies in their arguments in court, but it’s possible they were using that information as a stand-in for the technical specs from their actual drug supplier.

It’s equally possible that they bought drugs produced by either or both manufacturers, but got them from a third-party supplier against the wishes of Akorn and Becton-Dickinson.

When will the drugs expire?

Possibly as early as September. Maybe never. It all depends on how you read the timeline of events.

Here’s what we know: In September 2014, state officials said they had enough midazolam on hand to kill nine inmates. That means the oldest drugs in the inventory could be nearly three years old.

And here’s what we found out earlier this month: In an Arizona court case last year, lawyers asked Alabama officials to give depositions on their sources of execution drugs. Anne Hill, a lawyer for the Department of Corrections, declined to name the state’s drug suppliers, but did say that Alabama last bought midazolam in 2015.

That could mean one of two things.

If the state bought drugs in both 2014 and again in 2015, Alabama may have a secure supply of drugs — a seller they can go back to again and again.

But the 2015 purchase could have another meaning.

Akorn demanded a return of its drugs in March 2015. After that, Becton-Dickinson got more mentions in court documents, but the company didn’t announce its position on death penalty drug sales until September of that year.

If Alabama bought Akorn’s drugs in 2014 and returned or destroyed them months later, the state might have bought drugs made by Becton-Dickinson between March and September of 2015.

Becton-Dickinson’s midazolam has a shelf life of no more than two years, according to officials at Fresenius Kabi, the company that acquired Becton’s injectable midazolam operation in 2016. If the state has a batch of Becton-Dickinson’s midazolam, purchased between March and September 2015, those drugs could expire by September, or they could be out of date already.

Drugs by other manufacturers seem to have shelf lives that aren’t much longer.

Injectable midazolam in its powder form lasts for three years unopened, said Christopher McCurdy, pharmacy professor at the University of Florida and president-elect of the the American Association of Pharmaceutical Scientists.

Officials of the Alabama attorney general’s office said they had no comment on the purchase or expiration dates of midazolam.

What evidence supports the soon-to-expire theory?

Within the last month, Alabama executed two inmates, Robert Melson and Tommy Arthur, just two weeks apart. But state officials tell The Anniston Star there are no future execution dates set.

That seems to mimic the recent execution schedule in Arkansas, where the state sought to execute eight inmates in rapid succession to beat the deadline on their execution drugs. Another state, Florida, saw its midazolam expire last year and has already switched to a new execution drug.

What evidence works against the soon-to-expire theory?

As any addict knows, there are lots of ways to get drugs for off-label use if you’re really determined. The state could be using an offshore supplier or transferring drugs from another state agency.

The state Department of Public Health buys millions of dollars’ worth of drugs every year, but both current director Tom Miller and past director Don Williamson told The Star the department hasn’t supplied midazolam to the prison system for executions

“We were never asked nor did we order it,” Williamson said.

The Department of Mental Health’s Chief of Staff Jerry Mitchell told The Star the department hasn’t supplied DOC with midazolam, either.

That eliminates two of the state’s biggest purchasers of drugs, but there’s always the chance the state could have picked up the drugs through a different state agency.

Alabama could even pay a compounding pharmacist — a specialist who mixes drugs in small batches —to make the drugs from scratch. Court documents show the state couldn’t find a single Alabama pharmacist who would take the job. But there’s always the possibility state officials have ordered drugs from an out-of-state supplier.

Source: The Anniston Star, Chelsea Jarvis and Tim Lockette, Star staff writers, June 24, 2017

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