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In the crosshairs of conscience: John Kitzhaber's death penalty reckoning

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To cope with his dread, John Kitzhaber opened his leather-bound journal and began to write.
It was a little past 9 on the morning of Nov. 22, 2011. Gary Haugen had dropped his appeals. A Marion County judge had signed the murderer's death warrant, leaving Kitzhaber, a former emergency room doctor, to decide Haugen's fate. The 49-year-old would soon die by lethal injection if the governor didn't intervene.
Kitzhaber was exhausted, having been unable to sleep the night before, but he needed to call the families of Haugen's victims.
"I know my decision will delay the closure they need and deserve," he wrote.
The son of University of Oregon English professors, Kitzhaber began writing each day in his journal in the early 1970s. The practice helped him organize his thoughts and, on that particular morning, gather his courage.
Kitzhaber first dialed the widow of David Polin, an inmate Haugen beat and stabbed to death in 2003 while already serving a life sentence fo…

Board finds no Arkansas doctors aided execution-drug purchase, ends inquiry

The Arkansas State Medical Board on Thursday ended its investigation into how lethal-injection drugs were acquired by the state prison system, after determining no licensed doctors in Arkansas were involved.

The monthlong look into the procurement of execution drugs began after one supplier, the McKesson Corp., argued in court that its salesman had been duped into providing drugs without knowing their intended purpose.

The board's attorney, Kevin O'Dwyer, said he examined records of sales between the Department of Correction and drug suppliers and spoke with attorneys for involved parties to determine whether any of the board's licensees had "fraudulently" obtained execution drugs.

O'Dwyer told a reporter Thursday that he found no such misconduct or any doctors who were involved.

Without receiving a written report, the Medical Board voted to take O'Dwyer's conclusions "as information," effectively halting the investigation.

"Unless we receive additional information, our investigation is finished," O'Dwyer said.

Had evidence of violations been found, O'Dwyer said, the board would have held a hearing to determine whether to issue a reprimand, strip or suspend a doctor's license, or drop the case.

The board does not have the authority to investigate the Department of Correction or its officials, only licensed doctors, O'Dwyer said.

Among McKesson's claims were that prison officials used the medical license of an Arkansas physician who had a contract with the department.

"The information that we saw, in not just documents but speaking to several people that were involved, he did not have any involvement in procuring [drugs]," O'Dwyer said.

Those drugs were used in the execution of four inmates at the Cummins prison in April. Another four condemned prisoners were spared by court stays.

McKesson had tried to halt all the executions, and its drug from being used, by requesting a restraining order in Pulaski County Circuit Court. The order was issued, but ultimately overturned by the state Supreme Court.

Officials with the Department of Correction, in turn, denied invoking the doctor's license to purchase the drugs.

A spokesman with the Department of Correction declined to comment on the Medical Board's decision Thursday.

Court records submitted in April identified the licensee on a purchase order for vecuronium bromide, one of three drugs used in state executions, as Dr. Robert Allen Floss, an assistant regional medical director for Correct Care Solutions.

The Nashville, Tenn., company is the private provider of the Department of Correction's health care services. The company has denied that Floss or any of its workers were involved in the purchase of execution drugs.

On Thursday, Correct Care spokesman Jim Cheney declined to comment in an email, saying he would let the board's decision "speak for itself."

O'Dwyer said he did not talk to Floss directly, but spoke with his lawyers. The Medical Board attorney declined to say who else he spoke with during his investigation.

A representative for McKesson Corp. could not be reached Thursday for comment.

According to years of purchase orders obtained from the Department of Correction through the Freedom of Information Act, Floss' medical license was used to purchase drugs for prisons dating back to at least 2013.

Citing exemptions from public-disclosure laws written into the state's Method of Execution Act, the department has declined requests to release purchase orders for its execution drugs.

In addition to McKesson, the pharmaceutical companies Fresenius Kabi USA and West-Ward Pharmaceuticals have in court briefs accused Arkansas' prison system of skirting company rules to obtain execution drugs.

Drugmakers and suppliers across the U.S. and Europe have enacted such controls to prevent their drugs from being used in executions, making it difficult for states, including Arkansas, to maintain supplies of lethal-injection drugs.

April's executions were the first time the state had carried out its highest punishment in more than a decade.

They were scheduled to be carried out in quick succession, in part, because the state's supply of midazolam, a sedative used in executions, expired at the end of April.

The state has not announced the acquisition of a new supply.

Source: Arkansas Online, John Moritz, June 9, 2017

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