Why the Execution Drug Shortage Will Likely Worsen

by | March 31, 2015

By Tim Lockette

States searching for drugs to use in executions by lethal injection may soon find another door slammed in their face, this time by the pharmacists who are the last-ditch source for execution drugs.

The International Academy of Compounding Pharmacists last week sent a message to its 4,000 members, urging them not to make drugs for use in the execution chamber.

"IACP discourages its members from participating in the preparation, dispensing or distribution of compounded medications for use in legally authorized executions," the Texas-based organization said in a letter to pharmacists.

A still larger organization, the 62,000-member American Pharmacists Association, voted in favor of a similar policy late Monday evening.

Several death penalty states have turned to compounding pharmacists -- apothecaries who mix specialty drugs in small batches -- to supply prisons with the drugs they need to kill condemned inmates. A boycott by drug manufacturers, starting with drug makers in Europe, has led to drug shortages in many states, slowing the pace of executions.

Alabama hasn't executed an inmate since 2013. State officials acknowledged last year that they ran out of drugs to use under the state's old execution formula, based on the drug pentobarbital. In September, the attorney general's office revealed in a court motion that Alabama had a new execution protocol based on the drug midazolam and had enough of the drug on hand to carry out executions.

Just where the state got its lethal injection drugs is difficult to say. On Monday, the Department of Corrections again rejected a public records request from The Star for paperwork generated in the purchase of those drugs. Janice Hughes, a member of the department's research and planning staff, told The Star in an email that the state wouldn't release the information due to pending lawsuits by death row inmates.

"Additionally, the department generally considers execution-related documents, including the purchase of execution drugs, confidential and exempt from public disclosure under Alabama law," Hughes wrote.

The nationwide shortage of execution drugs began with boycotts from Europe, where many major drugmakers are headquartered, and where every country west of Belarus has banned capital punishment.

In the past two months, though, key American sources of execution drugs have begun to dry up.

U.S. drugmakers Akorn and Mylan, long silent on their policies on lethal injection, have said in recent weeks that their drugs shouldn't be used in executions. Both companies say they never sold drugs directly to Alabama prisons, though Akorn was mentioned in court documents in one death penalty case. Akorn has since asked Alabama to return any supplies of its drugs, if the state has them.

States rejected by major drugmakers have always had another option: go to a compounding pharmacist for a specially made batch of execution drugs. Greg Turner, a spokesman for the IACP, said the professional organization got a number of calls from pharmacists seeking advice on how to respond to those requests. Most states, he said, have administrative laws requiring pharmacists to "do no harm" in prescribing drugs.

"That's the standard," Turner said. "They were in need of guidance on this. Members were asking what they should do."

The IACP represents the relatively small number of pharmacists who do compounding, but death penalty opponents have lobbied a larger group, the American Pharmacists Association, to discourage pharmacists nationwide from filling any prescription for execution drugs. The group voted to do just that Monday during its national convention.

"The American Pharmacists Association discourages pharmacist participation in executions on the basis that such activities are fundamentally contrary to the role of pharmacists as providers of health care," reads a statement the group approved Monday.

State Sen. Cam Ward, R-Alabaster, said activists' efforts are pushing states away from the most humane form of capital punishment. Ward is the Senate sponsor of a bill that would require the state to use the electric chair any time a drug shortage prevents executions.

"By denying the pharmaceuticals to the states, you're forcing states to come up with alternatives that aren't as humane as lethal injection," he said.

Ward said drug makers are backing out largely because they fear legal liability for executions.

The Alabama House of Representatives voted 72-24 earlier this month to pass a bill similar to Ward's. The House version of the bill includes a provision that would keep the names of drug makers secret -- something advocates of the bill say is not now in state law. Ward said he's uncomfortable with provisions in that bill that would protect certain drug information from disclosure even in a court of law.

"I don't like immunity for anybody," he said.

(c)2015 The Anniston Star (Anniston, Ala.)