In a bid to get approval for Alabama’s first execution since 2013, state officials may have tipped their hand on something they tried for months to keep secret: the identity of a supplier of drugs used in lethal injection.
Court documents filed this week suggest that Akorn Pharmaceuticals, an Illinois-based drug manufacturer, made the anesthetic Alabama plans to use as the first drug in its three-drug death penalty protocol. That drug, midazolam, was used in botched executions last year in Oklahoma, Arizona and Ohio.
It’s unclear who made the midazolam used in those executions, largely because states have become increasingly secretive about their use of death penalty drugs.
“A number of states are protecting their sources,” said Richard Dieter, director of the nonprofit Death Penalty Information Center. “This information is going to become harder and harder to find out.”
One year ago this week, Rep. Lynn Greer, R-Rogersville, presented an Alabama House committee with a bill that would make the identity of death penalty drug suppliers secret. Greer said he wanted to protect drugmakers from “blowback” from death penalty opponents. Greer, who said he proposed the bill at the request of corrections officials, acknowledged that the identity of drug manufacturers isn’t currently protected by law. Still, prison officials at the time rejected requests by The Anniston Star and other newspapers for information on the state’s death penalty protocol, saying it was not released as a matter of department policy.
Greer’s bill didn’t get past the Senate, but prison officials still won’t say who makes their death penalty drugs.
The blowback that worried Greer was real. Boycotts from Europe, where a number of critical drugs are made, have had death-penalty states scrambling in recent years to obtain enough drugs to kill inmates. In March of last year, Alabama officials acknowledged that the state couldn’t conduct executions because it didn’t have enough drugs on hand.
That changed in September, when the attorney general’s office asked the Alabama Supreme Court to set execution dates for nine of the 194 people now on death row. State officials said they had a new lethal injection drug combination: midazolam hydrochloride as an anesthetic, rocuronium bromide to relax the muscles and potassium chloride to stop the heart. They also said they had enough of the drugs on hand to execute all nine men.
Thomas Arthur, imprisoned since the 1980s for the murder-for hire of a Muscle Shoals man, was to be the first person executed under the new formula. The court initially set Feb. 19 – this Thursday – as his execution date.
Arthur and seven other inmates have challenged the new drug formula in court, on the grounds that it will lead to a painful death – a violation of the Eighth Amendment ban on cruel and unusual punishment. Midazolam is a key element of their complaint. The drug was used last year in an Oklahoma execution that took 43 minutes, an Ohio execution that lasted more than 20 minutes and an Arizona execution that lasted nearly two hours.
Arthur doesn’t appear to be on the way to execution this week. A federal court granted him a stay of execution until after a hearing in May. But in an appeal to that decision filed earlier this week, lawyers for the attorney general’s office argued that Arthur’s claims about midazolam were “inconsistent with the manufacturer’s package insert for midazolam.” Attached to the court document is a copy of the manufacturer’s instructions for the drug – branded with Akorn’s logo.
The state’s motion refers to Akorn’s drug manual twice as “the manufacturer’s package insert.” There’s a third reference to “the manufacturer’s Material Safety Data Sheet,” with a link to a drug safety document put out in 2007 by Ohio-based Ben Venue Laboratories.
Ben Venue would seem to be an unlikely source of Alabama’s midazolam, however. Accounts in Ohio newspapers and the magazine Crain’s Cleveland Business indicate that almost all manufacturing at the company halted in December 2013. A new owner, London-based Hikma, bought Ben Venue in July, press accounts indicate, but had not resumed production by the end of September — after Alabama had acquired its new execution drugs.
State officials wouldn’t comment on whether Akorn, the Illinois company, is indeed the maker of Alabama’s midazolam.
“Because of the ongoing litigation, we’re not releasing any information about the protocol,” said Bob Horton, spokesman for the Alabama Department of Corrections.
Alabama attorney general spokesman Mike Lewis said the office had no comment. Arthur’s lawyers, through their spokesman Paul Holmes, also said they had no comment.
Multiple attempts to reach Akorn for comment Wednesday were unsuccessful.
State records show no purchases of Akorn products by the state in the past year, though the state has done business with two medical suppliers, McKesson and AmerisourceBergen, that are listed by Akorn as distributors of midazolam.
British activists called on Akorn last year to put controls in place to prevent its midazolam from being used in executions. That call led to speculation in the media that the company was a supplier of drugs for one of last year’s botched executions.
But lawyer Dale Baich, who represented Arizona inmate Joseph Rudolph Wood before he was executed last year, said no one but the state knows who made Arizona’s midazolam.
“We asked for the information and the state would not disclose it,” he said. “We went to court in the 9th Circuit Court of Appeals. We have never been provided with the information.”
Baich was a witness to Wood’s execution in July. At first, the drugs appeared to be working.
“His breathing appeared to stop,” Baich said. “About 10 or 12 minutes in, his mouth opened and he gasped. The breathing went on for about an hour and 40 minutes” before Wood died, Baich said.
If defense lawyers had known the manufacturer of the drug, Baich said, they would have been able to get more information about the quality of the drug and its expiration date.
Dieter, of the Death Penalty Information Center, said there are several companies that could be providing the drugs to various states. Earlier mainstays of lethal injection, such as thiopental and pentobarbital, had few suppliers and could more easily be shut off.
“That’s the appeal of this drug,” he said. “There’s enough in the stream of commerce that it can’t be pinned on one company.”
Greer, the lawmaker who first proposed the death penalty secrecy bill, said he wasn’t familiar with Akorn. He said corrections officials never told him who is supplying the drugs for executions.
“We’ve never known where it came from,” he said. “I don’t think that’s something the Legislature would know.”