In the latest sign of an what seems like a cultural shift on the issue of capital punishment, Pfizer announced yesterday that it would no longer permit its drugs to be used as part of the lethal injection “cocktail” that most states that still have the death penalty and use it:
The pharmaceutical giant Pfizer announced on Friday that it had imposed sweeping controls on the distribution of its products to ensure that none are used in lethal injections, a step that closes off the last remaining open-market source of drugs used in executions.
More than 20 American and European drug companies have already adopted such restrictions, citing either moral or business reasons. Nonetheless, the decision from one of the world’s leading pharmaceutical manufacturers is seen as a milestone.
“With Pfizer’s announcement, all F.D.A.-approved manufacturers of any potential execution drug have now blocked their sale for this purpose,” said Maya Foa, who tracks drug companies for Reprieve, a London-based human rights advocacy group. “Executing states must now go underground if they want to get hold of medicines for use in lethal injection.”
The obstacles to lethal injection have grown in the last five years as manufacturers, seeking to avoid association with executions, have barred the sale of their products to corrections agencies. Experiments with new drugs, a series of botched executions and covert efforts to obtain lethal chemicals have mired many states in court challenges.
The mounting difficulty in obtaining lethal drugs has already caused states to furtively scramble for supplies.
Some states have used straw buyers or tried to import drugs from abroad that are not approved by the Food and Drug Administration, only to see them seized by federal agents. Some have covertly bought supplies from loosely regulated compounding pharmacies while others, including Arizona, Oklahoma and Ohio, have delayed executions for months or longer because of drug shortages or legal issues tied to injection procedures.
A few states have adopted the electric chair, firing squad or gas chamber as an alternative if lethal drugs are not available. Since Utah chooses to have a death penalty, “we have to have a means of carrying it out,” said State Representative Paul Ray as he argued last year for authorization of the firing squad.
Lawyers for condemned inmates have challenged the efforts of corrections officials to conceal how the drugs are obtained, saying this makes it impossible to know if they meet quality standards or might cause undue suffering.
“States are shrouding in secrecy aspects of what should be the most transparent government activity,” said Ty Alper, associate director of the death penalty clinic at the University of California, Berkeley, School of Law.
Before Missouri put a prisoner to death on Wednesday, for example, it refused to say in court whether the lethal barbiturate it used, pentobarbital, was produced by a compounding pharmacy or a licensed manufacturer. Akorn, the only approved company making that drug, has tried to prevent its use in executions.
Pfizer’s decision follows its acquisition last year of Hospira, a company that has made seven drugs used in executions including barbiturates, sedatives and agents that can cause paralysis or heart failure. Hospira had long tried to prevent diversion of its products to state prisons but had not succeeded; its products were used in a prolonged, apparently agonizing execution in Ohio in 2014, and are stockpiled by Arkansas, according to documents obtained by reporters.
Because these drugs are also distributed for normal medical use, there is no way to determine what share of the agents used in recent executions were produced by Hospira, or more recently, Pfizer.
Campaigns against the death penalty, and Europe’s strong prohibitions on the export of execution drugs, have raised the stakes for pharmaceutical companies. But many, including Pfizer, say medical principles and business concerns have guided their policies.
“Pfizer makes its products to enhance and save the lives of the patients we serve,” the company said in Friday’s statement, and “strongly objects to the use of its products as lethal injections for capital punishment.”
Pfizer said it would restrict the sale to selected wholesalers of seven products that could be used in executions. The distributors must certify that they will not resell the drugs to corrections departments and will be closely monitored.
David B. Muhlhausen, an expert on criminal justice at the Heritage Foundation, accused Pfizer and other drug companies of “caving in to special interest groups.” He said that while the companies have a right to choose how their products are used, their efforts to curb sales for executions “are not actually in the public interest” because research shows, he believes, that the death penalty has a deterrent effect on crime.
Pfizer’s decision is only the latest development in a series of events that have made it more difficult for states to execute prisoners via lethal injection:
Less than a decade ago, lethal injection was generally portrayed as a simple, humane way to put condemned prisoners to death. Virtually all executions used the same three-drug combination: sodium thiopental, a barbiturate, to render the inmate unconscious, followed by a paralytic and a heart-stopping drug.
In 2009, technical production problems, not the efforts of death-penalty opponents, forced the only federally approved factory that made sodium thiopental to close. That, plus more stringent export controls in Europe, set off a cascade of events that have bedeviled state corrections agencies ever since.
Many states have experimented with new drug combinations, sometimes with disastrous results, such as the prolonged execution of Joseph R. Wood III in Arizona in 2014, using the sedative midazolam. The state’s executions are delayed as court challenges continue.
Under a new glaring spotlight, deficiencies in execution procedures and medical management have also been exposed. After winning a Supreme Court case last year for the right to execute Richard E. Glossip and others using midazolam, Oklahoma had to impose a stay only hours before Mr. Glossip’s scheduled execution in September. Officials discovered they had obtained the wrong drug, and imposed a moratorium as a grand jury conducts an investigation.
A majority of the 32 states with the death penalty have imposed secrecy around their drug sources, saying that suppliers would face severe reprisals or even violence from death penalty opponents. In a court hearing this week, a Texas official argued that disclosing the identity of its pentobarbital source “creates a substantial threat of physical harm.”
But others, noting the evidence that states are making covert drug purchases, see a different motive. “The secrecy is not designed to protect the manufacturers, it is designed to keep the manufacturers in the dark about misuse of their products,” said Robert Dunham, executive director of the Death Penalty Information Center, a research group in Washington.
In essence, what we have hear is a sign of the free market in action. As the years have passed companies like Pfizer have found that the negative publicity that they receive for being involved with increasingly controversial executions in the United States simply isn’t worth whatever revenue might have been received for sales for this purpose. This is a reflection of a trend that appears to show at least some slippage in support for capital punishment as a sentencing alternative. While a majority of Americans still support capital punishment in the abstract, recent polling has also shown that, when presented with the alternative of a life sentence without the possibility of parole or the death penalty, a majority of Americans support life in prison. Just last year, Nebraska, a relatively conservative state controlled by Republicans, became the latest state to abolish the death penalty. One of the reasons why attitudes may be changing on this issue, of course, is the rash of cases over the past decade or more revealing that people who have been in prison for a long period of time were in fact innocent of the charges against them. The more common these cases become, the more apparent it becomes that, even with all of the procedural protections in the world, the possibility exists that someone who is innocent could end up being executed. Indeed, that appears to be exactly what happened in the case of Cameron Todd Willingham, a Texas father convicted and executed in the arson deaths of his three children who, subsequent investigations have revealed, was most likely innocent of the charges against him and harmed significantly by the inability of his court-appointed counsel to present the kind of expert testimony the state used due to the fact that Willingham could not afford such experts and the State of Texas refused to pay for them. Stories such as this have brought significant doubt to the certainly once allegedly provided by the death penalty.
At least in the short term, Pfizer’s decision is likely to make it more difficult for states to carry out executions and may slow down the pace of executions to an even greater degree than we’ve already seen. At the very least, states will have to find some new source(s) for their drug cocktail, or change the nature of the cocktail based on what’s available for sale. This is likely to lead to further litigation on the part of counsel for death row inmates who will seek to obtain as much information as possible about the substances being used for execution. Other states may join those who have changed their laws to authorize other methods of execution, returning to means that were largely abandoned in the 1980s and 1990s when it was determined that lethal injection was a more humane method of execution. If the shortages continue, though, and it becomes more expensive for states to carry out this task. Perhaps that’s what it will take to finally bring this practice to an end.
