At the height of Alabama’s search for lethal injection drugs, state officials were turned down by every pharmacy they contacted for help, according to court records filed Wednesday.
State officials asked every licensed compounding pharmacist in Alabama to make batches of pentobarbital — once the primary drug used to kill inmates — and all refused. Attempts to buy the drug from four other states also failed, court documents state.
Those refusals could point to a rough road ahead for the death penalty, despite a U.S. Supreme Court ruling last year that cleared another drug, midazolam, for use in executions.
“Alabama’s experience is not at all unique,” said Robert Dunham, director of the Death Penalty Information Center, a Washington-based group that studies the death penalty. “This is part of the medical community’s rejection of lethal injection as a practice.”
Alabama officials are trying to resume executions by lethal injection after a two-year hiatus caused by legal challenges and shortages of key execution drugs.
Tommy Arthur, condemned to death for the 1980s murder-for-hire of Muscle Shoals resident Troy Wicker, is one of several inmates who have challenged the state’s current approach to execution: injecting an inmate with midazolam to deaden pain, rocuronium to still the muscles and potassium chloride to stop the heart.
Midazolam has been used in botched executions in other states, including an Oklahoma execution in 2014 in which it took an inmate more than 30 minutes to die after the drugs were injected. Inmates say the use of midazolam is cruel and unusual, but the U.S. Supreme Court approved its use in an Oklahoma case last summer, seemingly clearing the way for executions in Alabama as well.
Lawyers for the state on Wednesday asked a federal court for a summary judgment that would end Arthur’s appeals and send him to the execution chamber.
But Arthur’s lawyers are trying to flip the script in the case. Before the state adopted midazolam as a death penalty drug, Arthur filed a similar challenge against the use of pentobarbital, Alabama’s main execution drug before 2014. Now that he’s faced with execution by a new drug, Arthur wants to switch back to pentobarbital, a drug he claims is less cruel than midazolam.
Lawyers for the Alabama attorney general’s office say they can’t return to pentobarbital, because no one will sell the drug to the Department of Corrections.
“These sources have either indicated they cannot obtain the ingredients for compounded pentobarbital, were not capable of compounding pentobarbital, or refused to be a supplier for the ADOC” lawyers for the attorney general’s office wrote in a court document.
The court documents, among hundreds of pages filed in Arthur’s case last week, shed light on Alabama’s often secretive attempts to obtain drugs for use in lethal injection. Several states have struggled to get their hands on drugs because a growing number of drug suppliers refuse to sell them, citing ethical objections or opposition to capital punishment.
In 2014, lawmakers considered a bill that would make the sources of execution drugs a state secret, not subject to open records laws. Lawmakers at the time said drug companies feared backlash from death penalty opponents.
"The people who make the drugs are subject to lawsuits and harassment," Rep. Lynn Greer, R-Rogersville, said at the time. "It gets to the point where nobody wants to make the drug."
A month after Greer filed his bill, state officials acknowledged that they had no pentobarbital on hand — which explained why no inmate has been executed since 2013.
The secrecy bill never passed, but state officials still refuse to release the names of death penalty drug suppliers, citing a gag order in the Arthur case. The new court documents show that even with that secrecy in place, the state simply couldn’t find a supplier, despite contacting “nearly thirty” sources.
The state sought those drugs from compounding pharmacies, specialty pharmacies that mix small batches of drugs on-site. They had to: Pharmaceutical companies will no longer sell pentobarbital to prison systems. Fewer than two dozen pharmacies in the state are accredited to make injectable drugs that way.
Arthur’s lawyers supplied the state with a list of 19 Alabama pharmacies they said were potential sources of pentobarbital. (All 19 names are blacked out in court documents.) But the state’s lawyers argue they’ve contacted all 19, plus others, and been turned down.
“While Arthur alleged that as many as 10 states intend to use compounded pentobarbital for executions, the process of obtaining compounded pentobarbital is difficult to impossible for most,” the state’s lawyers wrote.
That might not matter now, given that Alabama has switched to midazolam, a drug that’s more readily available on the market.
But pharmacists’ resistance to compounding execution drugs may soon turn out to be important in the search for midazolam as well, said DPIC’s Dunham.
“In the future, midazolam is going to be available from compounding pharmacies if it’s available to prisons at all,” Dunham said. Big pharmaceutical companies are beginning to back away from supplying the drug to prison systems, he said, after some companies discovered their drugs were being used by states for execution without the company’s permission.
Two major suppliers of midazolam — Illinois-based Akorn and New Jersey-based Becton-Dickinson — have declared in the past year that they’re opposed to selling the drug to Alabama for executions.
While the state hasn’t identified its midazolam supplier, the state’s lawyers used “package inserts,” essentially instructions for use of a midazolam, from Akorn and Becton Dickinson in court filings this year. Both companies have denied selling the drug directly to Alabama prisons, and Akorn even asked the state to return any Akorn-made midazolam it had on hand for executions.
Individual pharmacists are also backing out of the lethal injection business. Last year, the International Academy of Compounding Pharmacists and the American Pharmacists Association both voted to discourage their members from supplying drugs for executions.
Akorn and Becton-Dickinson both got another mention in court documents last week, when Arthur’s lawyers filed a transcript of a deposition in which an expert witness says he found the Becton-Dickinson insert on the Internet.
“It was one of the available generic package inserts for midazolam,” the expert witness, Stephen Bannister, says in the deposition. Bannister said lawyers later told him the Akorn insert was the “reference” in the Arthur case.
Attempts to reach Arthur’s lawyer, Suhana Han, for comment were unsuccessful. Joy Patterson, a spokeswoman for the Alabama attorney general’s office, said the office wouldn’t comment on the filings.
Arthur’s case is scheduled for a final hearing later this month.
Summary: Alabama execution drugs, past and present
Thiopental: Also known as sodium pentothal — the drug cited as a “truth serum” in countless dime-store spy novels — thiopental was once the key drug in Alabama’s execution protocol. A general anesthetic, thiopental was given to condemned inmates to deaden the pain of the drugs later administered to stop the heart. Supplies grew short after the drugmakers stopped selling it to prisons. In 2011, the state handed over its supply to the Drug Enforcement Agency, which had seized drugs other states obtained on the black market. Alabama got its thiopental from Tennessee.
Pentobarbital: After thiopental, Alabama switched to pentobarbital, commonly used to put down injured or stray animals. By March 2014, the state had run out of the drug. Neither pharmacists nor other states would sell the drug to the prison system, court documents revealed last week.
Midazolam: In September 2014, Alabama replaced pentobarbital with midazolam. Opponents say it’s primarily an anxiety drug, not a painkiller with the potency of thiopental. The U.S. Supreme Court, however, approved the use of thiopental last summer, possibly clearing the way for executions to resume after a two-year hiatus.