August 1st, 2016
One afternoon, Donnie Calhoun, owner of Calhoun Compounding Pharmacy in Anniston, Alabama—”Compounding for Life’s Problems“—came back from a meeting to find a strange request from the Alabama Department of Corrections. The girl who’d answered the phone had written their question down on a notepad: Did he want to make a lethal injection drug that they would use to carry out an execution?
“I went, what? They do this?” He called them back and let them know that he would not make a drug that would be used to kill. “For me, as a health-care professional, I want to help people live longer. The last thing I want to do is to help someone die.”
Other sterile compounding pharmacists in the state were similarly unenthused about requests to help Alabama execute its death row inmates. Of the nearly thirty compounding pharmacies contacted by the state, all refused, according to court records. “Of course, we said absolutely not,” says one of the owners of Eagle Pharmacy in Hoover, Alabama. “It’s something no one wants to do, and it’s quite understandable.”
A pharmacist in Virginia also says that someone from the attorney general’s office recently popped into his store and asked about lethal injection drugs. “No one will do it,” he says. “Maybe you should try executing them with heroin,” he wise-cracked to them about a drug that’s a whole lot easier to obtain in the state of Virginia.
Why Execution Drugs Are Getting Harder to Find
Life is getting increasingly complicated for officials in states intent on carrying out the death penalty.
For the past few years, executions have been hindered by an unlikely obstacle: the moral compass of the pharmaceutical industry—or, more precisely, Pharma’s concern over bad PR.
This is especially evident in Europe, where there’s widespread opposition to the US death penalty. The EU, which bans capital punishment, also prohibits the sale of drugs for lethal executions in America, so pharmaceutical companies that do business in Europe have to actively make sure their products aren’t used in American executions. Many large companies not only refuse to make drugs for lethal injection but make their distributors sign contracts forbidding them from selling drugs to US departments of correction. Many have written US states asking that they don’t use drugs they already have in stock.
Of course, that hardly guarantees that their product won’t end up in a syringe in an execution chamber: States tend to ignore their requests that their medicine isn’t used to kill.
Documents obtained by The Influence show that two of the substances in Virginia’s stash of execution drugs—rocuronium bromide to induce paralysis and potassium chloride to stop the heart—were manufactured by Mylan and APP Pharmaceuticals respectively. Both companies have European branches and have denounced the use of their drugs in executions.
There are clear incentives for doing this: In 2014, Mylan lost $70 million when a German investor pulled out, after it was discovered Alabama was using Mylan-produced rocuronium bromide to put prisoners to death. The drug was part of a previously untested execution cocktail, according to NBC.
In October 2015, Mylan published a statement decrying the use of its drugs for capital punishment:
“Recently Mylan received information indicating that a department of corrections in the US purchased Mylan’s rocuronium bromide product from a wholesaler for possible use outside of the labeling or applicable standard of care. Mylan takes very seriously the possibility its product may have been diverted for a use that is inconsistent with its approved labeling or applicable standards of care.”
Mylan confirms to The Influence that the department of corrections it wrote to in 2015—asking that its drugs only be used for approved medicinal purposes, not death—was Virginia.
“Mylan takes seriously the possibility that one of its products may have been diverted for a use that is inconsistent with its approved labeling,” they wrote in 2015. “We appreciate that the Department of Corrections may purchase Mylan products for therapeutic purposes. Nevertheless, we would request your assurances that the Department of Corrections has not acquired Mylan’s rocuronium bromide or any other Mylan product for a purpose inconsistent with their approved labeling and applicable standards of care, and that it will not do so in the future.”
And yet here are Mylan’s drugs, still sitting in Virginia’s execution arsenal as of this June.
Rocuronium Bromide produced by Mylan:
Potassium Chloride produced by APP Pharmaceuticals was also in Virginia’s stash as of this June:
“Pharmaceutical companies have never wanted medicines they make to save and improve the lives of patients used in executions designed to end the lives of prisoners,” says Maya Foa, director of the human rights advocacy organization Reprieve’s death penalty team. “They have taken concrete steps to prevent this by implementing rigorous distribution controls to prevent sales of these medicines to Departments of Corrections for use in lethal injection executions. States like Virginia should respect the wishes and interests of the industry and stop the misuse of medicines in executions.”
More documents obtained by the The Influence indicate that the wholesaler which sold Mylan’s drugs to the State of Virginia before the company put contractual controls in place is Cardinal Health—a large drug distributor based in North Carolina.
There’s no evidence that Cardinal Health has sold drugs to Department of Corrections since the companies instituted their controls. It’s a sign that the public pressure campaigns of groups like Reprieve will continue to diminish the drug supply as the drugs in stock expire.
Alfredo Prieto was killed by the state of Virginia on October 1, 2015. The Virginia Department of Corrections confirms that he was executed using Mylan’s rocuronium bromide and APP’s potassium chloride. The latter drug has effects likened to “being burned alive from the inside,” if the prisoner is not fully sedated.
The potassium chloride from APP expired this June, according the the Virginia Department of Corrections. But the Mylan-produced rocuronium bromide is good until 2017.
Cash and Incompetence—The Sheer Sketchiness of Some Sources
But using pharmaceutical companies’ drugs despite their protests is nowhere near the sketchiest way states have gone about facilitating their lethal injections.
As few years ago, Texas, Arizona and Nebraska paid $80,000 to a businessman to obtain the sedative sodium thiopental from India. That plan went awry when the FDA confiscated the drugs in 2015—turns out, you’re not allowed to order large quantities of powerful barbiturates from foreign countries via mail.
When a Nebraska official asked the vendor for a refund, he (obviously) declined, pointing out that he’d met his end of the bargain. The FDA is likely still warehousing them, Chris McDaniel at Buzzfeed reports.
The shady sources of drugs and the secrecy surrounding execution protocols have had nightmare outcomes. Here’s one of many examples: In 2010, the state of Arizona likely used an expired batch of sodium thiopental from overseas to sedate Jeffrey Landrigan before administering the paralytic, Liliana Segura reported at the Intercept.
Because the sedative forming the first part of the execution-drug trio had likely expired, Landrigan was probably fully conscious when the second drug paralyzed him, and when the third drug stopped his heart. His eyes were open when he died.
Neither does using a US pharmacy to obtain execution drugs guarantee that things will be handled professionally.
In 2014, the quaintly named Apothecary Shoppe, a compounding pharmacy in Tulsa, Oklahoma—“Because your prescription matters”—was revealed as the source for lethal injection drugs used in three Missouri executions.
A year later, regulators inspecting the pharmacy found over one thousand code violations—including questionable sterilization practices and drug potency, Buzzfeed reported. The Apothecary Shoppe had also fudged the expiration dates on its drugs.
As Buzzfeed points out, years before, Missouri’s death row inmates had expressed their concerns that products made by compounding pharmacies didn’t “meet the requirements for identity, purity, potency, efficacy, and safety that pharmaceuticals under FDA regulation must meet.”
The state dismissed their concerns.
“[This] allegation does not make plausible claim that Missouri’s execution procedure is sure or very likely to cause serious illness or needless suffering and give rise to sufficiently imminent dangers,” the state wrote, arguing that their lawsuit should be dismissed.
Providing the Drugs Is a Bad Business Strategy
But even turning to passably well-run compounding pharmacies hasn’t been working so well lately for death-penalty states.
Nowadays, it’s a bad business strategy for a pharmacy to wade into the deeply divisive issue of lethal injections. Set against the potential awful publicity, the financial incentives offered by death-penalty states are not particularly tempting.
Several pharmacists in death penalty states who spoke with The Influence said that they would not make drugs for executions, either for ethical reasons—even one who supports the death penalty said he couldn’t bring himself to make the drugs, even for a good fee—or because it’s too controversial. The International Academy of Compounding Pharmacists (IACP), the largest trade group of compounding pharmacists, has advised members not to make the drugs.
“No no no,” a pharmacist in Virginia said. “I would not want to. In a word, no.”
So in the past few years, more and more death-penalty states have tried a new tack: passing gag orders that keep the identity of the manufacturer and parts of the execution protocol secret, in the hopes that if they can guarantee total anonymity, they’ll have more takers.
The latest state to pass a secrecy law is Virginia—the law went into effect this month. A spokesperson for the Virginia Department of Corrections tells The Influence that the state has now begun its clandestine search for more execution drugs.
“Nothing Good Happens in Secret”—Virginia’s Weird Deal
There are seven people on death row in Virginia. Two of them were scheduled to die this year, but their executions have been temporarily stayed.
Ricky Gray is on death row for taking part in a robbery spree where he and his accomplice killed seven people, including two children. Ivan Teleguz, a Ukrainian national, was convicted of having his ex-girlfriend murdered—but there are major holes in the state’s case against him, including key witnesses admitting they lied in exchange for a deal from prosecutors.
Whether and how Gray and Teleguz are killed might depend on a strange electoral compromise, struck between pro-death penalty lawmakers and Virginia Governor Terry McAullife.
In late 2015, state lawmakers introduced a bill to bring back the electric chair, so that executions could proceed even if the state ran out of execution drugs.
The bill passed the House and Senate. But when the law landed on Gov. Terry McAuliffe’s desk, he made it clear it would not pass.
“I personally find it reprehensible,” McAuliffe said at the time. “We take human beings, we strap them in a chair and then we flood their bodies with 1,800 volts of electricity, subjecting them to unspeakable pain until they die.”
He proposed an alternative: Instead of going back to the electric chair, the state would acquire drugs from sterile compounding pharmacies—but through the passage of a state secrecy clause that would protect the identities of the pharmacies.
“These manufacturers will not do business in Virginia if their identities are to be revealed,” McAuliffe said at the time, according to the Washington Post. McAuliffe made it clear that if his secrecy amendment didn’t pass, he would end executions in the state rather than resort to the chair.
McAuliffe’s compromise effectively ensured the death penalty would continue—even though he could have stopped it.
“I am pleased the Governor agrees that the death penalty must remain available in order to preserve the full measure of justice,” Del. Jackson Miller (R-Manassass), the electric chair bill’s sponsor, told local news sources.
Sen. Scott Surovell (D), who helped lead the charge against both the electric chair bill and McAullife’s secrecy clause, tells The Influence that he was deeply disappointed by the Governor’s move.
“Our governor purports to be against capital punishment. He kept it alive in Virginia instead of imposing a moratorium like other governors have done,” he says. “Nothing good happens in secret. I don’t think the government should do anything in secret—especially kill a human being.”
“My Body Is on Fire”—Oklahoma
The warden of Oklahoma State Penitentiary sat in front of a grand jury and attempted to explain how the state accidentally used the wrong drug to kill Charles Warner in 2015—and how nobody even noticed.
“I assumed that what the pharmacist provided was that [sic] we needed. So in my mind, that potassium acetate must have been the same thing as potassium chloride,” testified the warden.
“My body is on fire,” were Warner’s last words, said after he was administered midazolam, the first drug in the lethal cocktail.
If ever a compelling argument were needed for why execution procedures should have far more scrutiny and transparency—rather than more secrecy—Oklahoma’s most recent executions provide it. A damning 106-page jury report found failure at almost every step of the process—as well as a decent amount of attempted cover-up—in both the execution of Charles Warner and the attempted execution of Richard Glossip later that year.
And those failures happened after the state had tried to reform its execution protocol in response to the botched execution of Clayton Lockett in 2014, who appeared to writhe in pain and tried to get up from the gurney multiple times after being administered the sedative midazolam.
It took 43 minutes for him to die.
According to court filings, officials at the Corrections Department settled on using midazalom as the sedative in part with the aid of a cursory online search when they couldn’t find any pentobarbital, the officially sanctioned drug.
As they discovered, midazolam takes much longer to work than pentobarbital.
“I did have a discussion with our medical director at the time and he said, ‘Yeah Midazolam probably when administered will, will render sedation.’ And that’s all he would say,” said the former general counsel for the corrections department, who was involved in Lockett’s execution. “Then, you know, I did my own research, I looked on-line, you know. Went past the key Wiki leaks, Wiki leaks or whatever it is, and I did find out that when administered, Midazolam would administer, would render a person unconscious. That’s what we needed … So we thought it was okay.”
After the political fallout from Lockett’s botched execution, the state was forced to investigate and reform its execution processes before going through with the executions of Charles Warner and Richard Glossip.
“I Was Looking at It, Going, It’s Potassium”
This time, Oklahoma Department of Corrections obtained the drugs for Warner and Glossip’s executions by making a list of pharmacists and calling them up.
First, the officials asked for pentobarbital. The first pharmacist on their list refused to make execution drugs. Others said yes, but that they couldn’t get pentobarbital.
So the Department of Corrections switched its drug protocol and went back down its list of pharmacists, until finding one who agreed to provide midazolam, rocuronium bromide and potassium chloride.
That pharmacist accidentally ordered potassium chloride in a more diluted form than was needed. Seemingly in a rush to correct his mistake, he tried ordering potassium chloride again. But when he tried to pick the drug from a wholesaler’s website, he accidentally clicked potassium acetate, a far less common drug.
The pharmacist, whose identity remains confidential, tried to explain his error to the grand jury: “… in my head I was not thinking potassium chloride, because I was looking at it, going, it’s potassium. As I said, pharmacy brain versus probably a law brain, I guess. I don’t know.”
He was paid $869.85 in cash for his work.
On the day of Charles Warner’s execution, January 15, 2015, a Department of Corrections employee picked up the drugs from the pharmacy and drove them back to the prison, where no one noticed that the third drug was wrong—even though the Warden wrote down the words potassium acetate on the execution drug form.
They photographed the drugs. The IV team made syringes of each drug, and still, no one noticed that the drug meant to stop his heart was the wrong one.
Asked how the team could have failed to notice, the IV team leader replied, “That’s a great question. And I don’t know that I can absolutely answer that.”
Although admitting “the buck stops with me,” his explanation for not noticing was that he was so nervous about getting the right concentrations of each drug—a mighty important task, given the horrors of botched executions when the inmate hadn’t been adequately sedated.
He continued, “…the concentration of this drug [midazolam] is much more concentrated than what we normally use … So—and I’m not very good at math in my head. So I had to really think about the concentration of that. Am I—is this right?”
He described feeling anxious about getting the dosage right and performing the execution. “Somehow in my—again, my mind is going, 30 minutes from now you’re going to be in that room starting IVs on some guy that is not going to like you very much. And you’ve got—and all eyes are on you, in effect,” he said.
The final drug was easy compared to the other two, so it seems he let his attention flag a little bit:
“It was three vials; boom, boom, boom. It just took a minute and we drew them up, we were done. It was the easiest of the three. In terms that we didn’t have to focus on dilutions and concentrations. We just had to draw them up and they were done. And somehow that glaring word, acetate—I don’t know, ma’am. I just totally dropped the ball, is all I can say.”
“The Most Abundant Element in Our Atmosphere”
On September 30, a prison employee made another trip to the same pharmacy—this time to pick up drugs for the execution of Richard Glossip.
Glossip’s case had attracted international attention. This was in part because of his strong claim of innocence—he was sentenced to die because a 19-year-old meth user who beat a motel owner to death claimed Glossip had put him up to it—and in part because Glossip challenged Oklahoma’s drug protocol all the way to the Supreme Court, claiming that midazalom was not a strong enough sedative to prevent him from experiencing pain. The Supreme Court voted 5-4 that states could continue using that drug protocol.
On the day that Richard Glossip was supposed to die, the warden noticed that the third drug in the drug cocktail they were about to prepare was potassium acetate, not potassium chloride. The warden opted to keep quiet about this realization. Later, they were asked why in front of the Grand Jury.
“When I seen it, I thought it was the same thing,” the Warden testified. “And I reflected on the way that we had done it previously with the accountabilities to ensure—I didn’t know—when the drugs were brought down, I didn’t know the pharmacist that we use or the pharmacy. I didn’t know who ordered the drugs. That’s not part of my job duty. I didn’t know it hadn’t been looked at, I assumed it had been. I assumed that what the pharmacist provided was that [sic] we needed. So in my mind, that potassium acetate must have been the same thing as potassium chloride.”
So the IV team members proceeded to draw up the syringes. At that point one of them also noticed the drug discrepancy and alerted prison authorities.
Over the next few hours, as Richard Glossip awaited his execution, state officials debated whether to proceed with the killing or to stop it. Governor Mary Fallin’s General Counsel pushed to go ahead with the execution after the doctor and pharmacist both said potassium acetate and potassium chloride were medically interchangeable.
“Google it,” the Governor’s General Counsel told the attorney general’s office, which wanted to halt the execution.
After all, it would look bad if they stopped the execution, he pointed out to the attorney general—because then everyone would find out that they had executed Charles Warner using the wrong drug.
As the clock ticked, the attorney general swayed Governor Fallin to grant a last minute delay that would spare Richard Glossip’s life—for now. Glossip remains on death row.
The state issued a press release explaining that the executions had been temporarily paused while the Governor’s office, Department of Corrections and the attorney general’s office addressed legal issues surrounding their drug protocol: “Executions will resume once those issues have been addressed to the satisfaction of all three parties.”
The Oklahoma Grand Jury concludes its report by listing the circumstances that led to this series of blunders.
It’s hard to find qualified physicians willing to take part in an execution these days, they point out. Pharmaceutical companies have clamped down on the use of their products in lethal injection. And it’s hard to find pharmacists willing to make the drugs instead.
Their solution? Switching to “nitrogen hypoxia”—death by suffocation with gas.
“Both Doctor A and Professor A testified executions carried out by nitrogen hypoxia would be humane,” the write, “and as nitrogen is the most abundant element in our atmosphere, the components for execution via nitrogen hypoxia would be easy and inexpensive to obtain.”