On Saturday morning, a federal judge brought Arkansas’ plans for a marathon of eight executions in 11 days to a screeching halt. Judge Kristine Baker determined that there were too many questions about whether midazolam, one of the drugs in Arkansas’ lethal injection cocktail, would expose inmates to undue pain. In recent years, a number of executions have gone awry because midazolam did not render the inmates unconscious.
Watch CBS News’ report on Baker’s ruling here.
However, a ruling that may be far more important in the long run was handed down about 15 hours before Baker’s ruling. A state circuit judge in Arkansas blocked the use of another drug in the lethal injection cocktail. He did so amid compelling evidence that state officials tricked the drug’s distributor into shipping the drug despite being well aware that neither the distributor nor the manufacturer approved of its use for executions.
Arkansas, like most states, uses three drugs to carry out lethal injections. Midazolam is intended to sedate the inmate, vecuronium bromide stops his breathing, and potassium chloride stops his heart. The state obtained its supply of veruconium bromide from McKesson, the nation’s largest drug distributor, in July 2016. Vecuronium bromide is manufactured by Pfizer, and is one of several drugs that Pfizer now closely monitors all the way to the end user in order to ensure that it is not used in executions.
However, two weeks later, the Associated Press discovered that a label on a vecuronium bromide bottle used by the Arkansas Department of Correction at Cummins Unit, home to the state’s execution chamber, matched labels submitted to the National Institutes of Health by Pfizer. Understandably, Pfizer officials hit the ceiling; in a statement, the company said that it asked Arkansas to return the chemicals at least twice.
McKesson officials were also outraged, and demanded the drugs’ return. The Department of Correction initially agreed to send back the drugs in exchange for a full refund. However, when the refund check and a prepaid shipping label arrived, state officials instead demanded a substitute product. The back-and-forth continued for nine months.
On Thursday, McKesson sent the Department of Correction an ultimatum–unless the department returned the drugs by Friday or provided written assurance that they would not be used for executions, McKesson would take “appropriate action.” The letter spells out what appears to be some of the most blatant subterfuge that has ever been uncovered at the state level. According to McKesson, the Department of Correction used the account of its medical director to obtain the drugs on July 11, 2016. In so doing, the department certified that the vecuronium bromide would not be used in executions, and was aware that Pfizer did not allow its drugs to be sold to correctional facilities.
McKesson says that it learned that the drugs had actually been bought for executions on July 21. As mentioned earlier, the Department of Correction reneged on a promise to return the drugs to McKesson. When the department refused to budge, McKesson sued the Department of Correction for its deceit. Read the complaint here. It included testimony from department director Wendy Kelley and deputy director Rory Griffin in which they stated they were aware Pfizer did not allow the sale of its products for use in executions.
On Friday, Pulaski County (Little Rock) circuit judge Wendell Griffen issued a temporary restraining order forbidding Arkansas from using the vecuronium bromide it bought from McKesson. The order was slated to stay in place until Tuesday at the earliest, when Griffen is due to hold a hearing.
With the federal court ordering a halt to the executions the next day, McKesson asked Griffen to abandon the restraining order, saying that Baker’s order removed “the imminent danger” that Arkansas would use its drugs. However, the company stated that it has every intention of seeking all legal remedies to ensure “the return of our product.”
It is literally impossible to overstate how important this ruling is. Pfizer is the last FDA-approved manufacturer of drugs commonly used in executions, and a number of states have resorted to end runs around Pfizer’s refusal to allow its products to be used for this purpose. From the looks of it, this is the first time that a state has been caught red-handed in such an end run.
On the face of it, the evidence of the Department of Correction’s deceit is beyond dispute. However, Griffen may have created an unnecessary distraction when he took part in a protest against the death penalty on Friday, even going as far as to strap himself on a cot in a manner similar to how an inmate would be strapped to a gurney.
— THV11 (@THV11) April 14, 2017
In response, state attorney general Leslie Rutledge sought to have Griffen’s order tossed out and Griffen recused from the case. Rutledge might have had a case if the Department of Correction’s behavior hadn’t been so egregious. But when the two top officials of a state corrections department essentially admit under oath that they deceived a drug supplier in order to make it easier to start executing people again, that behavior can’t be allowed to stand.
It’s not often that we in Liberal America find ourselves rooting for Big Pharma. But when a drug company draws a line in the sand against the death penalty and backs it up with action, that stance can only be applauded.
(featured image courtesy Don Cathon, part of public domain)