Officials in Delaware and 31 other states that use lethal injection to execute prisoners are scrambling to find new drugs to carry out death sentences, and in some cases are procuring them through secret exchanges and confidential deals – and from questionable sources.

Emails obtained by the Associated Press (AP) revealed how the head of Delaware’s Department of Correction enlisted a drugstore owner-turned-bureaucrat to acquire pentobarbital, the sedative component of the state’s new three-drug execution protocol since production of sodium thiopental ceased in the U.S. in early 2011. [See: PLN, June 2011, p.1].

Delaware DOC Commissioner Carl Danberg reached out to Alan Levin, the state’s economic development director, knowing that Levin used to own the Happy Harry’s drugstore chain, which he sold in 2006 before becoming a state official. Aware that Levin had spent more than a decade cultivating connections in the pharmaceutical industry, Danberg asked him to make a few calls.

According to the emails obtained by the AP, in May 2011, Levin contacted Mike Kaufmann, CEO of the pharmaceutical division of Cardinal Health, one of the largest wholesale distributors of prescription drugs in the United States.

“While I know this is a bit of a political issue, since Cardinal is not located in Delaware, I believed it may be easier for Cardinal to do this,” Levin wrote to Kaufmann. “Is [pentobarbital] something that Cardinal would be interested in selling to the state of Delaware? If not, do you have any recommendations who else we can pursue?”

Once Levin hooked up Danberg with his connection at Cardinal, “things fell into place,” Danberg told the AP.

Officials said the drugs that Cardinal shipped to the Delaware DOC in June 2011 – including pentobarbital, pancuronium bromide and potassium chloride – were enough to last for several executions, beginning with Shannon Johnson, a convicted murderer who was put to death by lethal injection in April 2012.

Levin told the AP that he was “happy to help facilitate” the process of acquiring the drugs, but that he, Danberg and other state officials worked hard to conceal the process so as not to jeopardize the possibility of getting more drugs in the future.

“I did not want it getting outside the smallest number of people as possible how we were pursuing the chemicals because I wanted to make sure we had a supply of the chemicals first,” Danberg said, candidly. “I did not want the supplier of the chemicals to go public, to be publicly known, simply because I did not want that source to dry up.”

Executions in many states have been halted or postponed due to concerns that replacement execution drugs do not meet the constitutional prohibition against cruel and unusual punishment, as they may result in pain and suffering. In addition, death row prisoners and advocacy groups have filed a flurry of lawsuits stemming from states’ efforts to find alternative sources for the drugs.

Some states have turned to compounding pharmacies to obtain execution drugs that are no longer available from manufacturers. Compounding pharmacies typically custom blend small amounts of specific drugs, but are not regulated by the federal government and the safety or effectiveness of the drugs is not verified by the U.S. Food and Drug Administration. A compounding pharmacy in Massachusetts was linked to an outbreak of fungal meningitis in October 2012 that resulted in over 60 deaths due to contaminated medication.

Three death row prisoners in Texas, the state with the highest number of executions, are challenging the state’s plan to use a drug obtained from a compounding pharmacy.

“Use of compounded pentobarbital would constitute a significant change in the lethal injection protocol, a change that adds an unacceptable risk of pain, suffering and harm to the plaintiffs if and when they are executed,” their lawsuit contends.

Medical experts note that compounded drugs carry a high risk of contamination and could subject prisoners to excruciating pain, which one expert compared to rubbing sandpaper on an open wound.

Further, a separate civil complaint filed in federal court in October 2013 alleges that officials with the Texas Department of Criminal Justice (TDCJ) submitted falsified prescriptions for pentobarbital to Woodlands Pharmacy, a compounding pharmacy in Houston, and used an individual employee’s credit card to buy the drug instead of a state purchasing order.

Prison officials had previously tried to obtain pentobarbital using the name of the “Huntsville Unit Hospital,” even though the Huntsville Unit, which houses the state’s execution chamber, hasn’t had a functional hospital for more than two decades.

“We believe that TDCJ’s purchase of compounded pentobarbital from Woodlands Pharmacy violates numerous state laws,” said Maurie Levin, one of the attorneys representing death row prisoners in the lawsuit. “The vast majority of compounded drugs can only be mixed or sold pursuant to a doctor’s prescription. TDCJ did not get a prescription for its purchase of compounded drugs. There are exceptions to the requirement, but TDCJ’s purchase does not qualify for any of them.”

The pharmacy demanded that state officials return the pentobarbital, but they refused.

“The states are scrambling to find the drugs,” noted Richard Dieter, who heads the Death Penalty Information Center. “They want to carry out these executions that they have scheduled, but they don’t have the drugs and they’re changing and trying new procedures never used before in the history of executions.”

As a result, unpredictable things can happen with new, largely untested lethal injection drugs. One example was the October 15, 2013 execution of Florida prisoner William Happ, who was put to death for the 1986 rape and murder of 21-year-old Angela Crowley. Happ was injected with the sedative midazolam hydrochloride, the first-ever use of that drug to execute a prisoner in the United States. The drug, known commercially as Versed, was part of a three-drug protocol.

According to the Associated Press, Happ’s execution lasted twice as long as it would have had pentobarbital been used; it took 16 minutes before Happ was declared dead, and he “remained conscious longer and made more body movements after losing consciousness than other people executed recently by lethal injection.”

The execution prompted seven Florida death row prisoners to file a federal lawsuit challenging the “Midazolam Protocol” used by the Florida Department of Corrections.

“We don’t even know if the new drug [midazolam] is working or not,” said Dieter. “Everything is a bit of an experiment with a human subject. If this were ordinary medicine, that would not be allowed, but this is the death penalty and that’s how it goes.”

As another example, when Michael Lee Wilson, 38, was executed in Oklahoma on January 9, 2014 by lethal injection, which included pentobarbital and a combination of other drugs, his final words were: “I feel my whole body burning.”

In Ohio, the planned November 2013 execution of Ronald Phillips was put on hold due to concerns about the use of a combination of midazolam and hydromorphone, a powerful painkiller.

“We really don’t know what the effect of using this drug cocktail will be, and that’s the really scary thing,” said Mike Brickner of the American Civil Liberties Union of Ohio. “What we are proposing is basically experimenting on human beings.”

This was the third time Ohio prison officials had changed their lethal injection drugs since 2009; previously, the state had used sodium thiopental and then pentobarbital when the former drug was no longer available.

“We don’t know how these drugs are going to react because they’ve never been used to kill someone,” said Fordham University law professor Deborah Denno, an expert on lethal injections. “It’s like when you wonder what you’re going to be eating tonight and you go home and root through your refrigerator to see what’s there. That’s what these departments of corrections are doing with these drugs.”

“You’re basically relying on the toxic side effects to kill people while guessing at what levels that occurs,” explained Professor Jonathan Groner at the Ohio State University College of Medicine. He said there are no guidelines for giving a lethal dose of hydromorphone because the drug is not designed to kill. An overdose could cause the prisoner to experience symptoms such as an extreme burning sensation, muscle pain or spasms, seizures, hallucination and vomiting, Groner said.

Ohio prisoner Dennis McGuire, 53, was executed on January 16, 2014 with an injection of midazolam and hydromorphone. According to news reports it took McGuire around 25 minutes to die; he struggled to breath, tensed his body and made snorting sounds. His family has since filed a lawsuit in federal court over his prolonged death, while prison officials claimed that McGuire’s attorney coached him to fake that he was suffocating during the execution.

Hospira, Inc., the manufacturer that produces midazolam and hydromorphone, announced in February 2014 that it opposes using the drugs in lethal injections. “Hospira makes its products to enhance and save the lives of the patients we serve, and, therefore, we have always publicly objected to the use of any of our products in capital punishment,” the company stated. Ohio prison officials had obtained the drugs produced by Hospira from McKesson, a pharmaceutical distributor based in San Francisco.

Legal challenges have halted scheduled executions in several states, including California, Missouri, Georgia, North Carolina, Pennsylvania and Colorado.

In October 2013, Missouri announced that it would use pentobarbital obtained from a compounding pharmacy. That announcement followed the Missouri DOC’s decision to return vials of propofol it had planned to use for lethal injections to Morris & Dickson, the company that had supplied the drug. Morris & Dickson had sold the propofol to the DOC in violation of its agreement with the German manufacturer, Fresenius Kabi, which prohibits the drug’s use in executions.

At least one execution in Missouri was postponed pending the switch to pentobarbital, and in February 2014 a compounding pharmacy in Oklahoma, the Apothecary Shoppe, agreed to not sell the drug to the Missouri DOC. Previously, prison officials had paid the pharmacy $8,000 in cash for each dose of pentobarbital.

California abandoned plans to use a three-drug execution protocol in July 2013, and instead indicated it would use a single-drug method. The state has not had an execution since 2006, largely due to legal challenges to its lethal injection procedures.

Oklahoma prison officials reportedly used petty cash accounts to buy lethal injection drugs, including an account used to purchase bus tickets for released prisoners, in order to minimize the paper trail and avoid identifying the supplier of the drugs. Other states likewise have tried to prevent the disclosure of their sources for obtaining execution drugs.

“There is absolute chaos among the states,” said Professor Denno. “So, every few months it seems we see a different state using a different type of drug, or types of drugs.”

“Recent restrictions imposed by pharmaceutical companies and the Food and Drug Administration make procuring these drugs challenging. We must ensure that individuals facing the death penalty are afforded certain guaranteed rights of due process before a state proceeds with an execution,” stated Colorado Governor John Hickenlooper.

The Denmark-based drug manufacturer Lundbeck, which holds the sole license to produce pentobarbital for the United States, told prison officials as early as January 2011 that the drug was not intended for lethal injections and asked for its use in executions to cease.

Many states then turned to propofol instead, but the European Union, which opposes the death penalty, threatened to restrict shipments of the drug to the U.S. if it was used in executions. Propofol is a common anesthetic widely used by hospitals, and import restrictions would potentially impact patient health and safety.

“Our system is completely broken, and I don’t know how to say it more bluntly than that,” said Arkansas Attorney General Dustin McDaniel. “It’s a complete impossibility. I can no more flap my arms and fly across the state than I can carry out an execution.”

Some states have considered abandoning lethal injection and returning to more traditional forms of capital punishment. For example, a bill to permit firing squads was introduced in Wyoming, though the state senate voted on February 11, 2014 not to consider the legislation. A similar bill has been introduced in Missouri, while lawmakers in several other states, including Virginia, Louisiana and Tennessee, have proposed reinstating the use of the electric chair.

Sources: Associated Press, www.delawareonline.com, www.deathpenaltyinfo.org, www.allgov.com, www.correctionsone.com, www.correctionalnews.com, www.motherjones.com, The Gainesville Sun, New York Times, CNN, National Journal, Los Angeles Times, KUOW Radio, The Raleigh News & Observer, www.cleveland.com, TIME, www.abcnews.go.com, www.mercurynews.com, Washington Post, www.nola.com

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