Pharmaceutical companies, various state departments of corrections, several countries, and prisoners are under fire. The issue on the table is the death penalty and how it is carried out; specifically in which drugs are used and how they are obtained. Currently, the firestorm spans a number of continents and includes a number of multi-national corporations. With 3,261 prisoners on death row, according to the Death Penalty Information Center, the issue is deadly serious.

At the center of the issue is a company named Hospira Inc., and a drug called sodium thiopental.  Hospira was the sole drug manufacturer in the U.S. that produced sodium thiopental; a key drug used in lethal injections. They halted U.S. production of the drug because of a number of factors including a world-wide campaign against their production of it by death penalty activists and issues with their factory in North Carolina in 2009.

Sodium thiopental is the drug that renders a condemned prisoner unconscious prior to the other drugs which cause death; specifically paralysis and the heart to stop. It has been used as a surgical anesthetic for over 70 years. Though, since the late 1970s, when Oklahoma was the first state to use it for executions, it has become a mainstay in state executions. Over the years other newer drugs have gained favor in the surgical realm, but sodium thiopental has remained the favorite for use in executions; something Hospira has attempted to distance itself from by telling prison officials to not use the drug during executions.

In 2009 Hospira stopped producing sodium thiopental in a North Carolina plant because of manufacturing issues. Since halting U.S. production of the drug, Hospira has announced a shift in production to a plant in Liscate, Italy. This move was made against objections in Italy by the Italian government. The primary opposition by the Italian government was because of the Italian constitution which prohibits the death penalty. Although, it should be noted that almost every person involved with the use of the drug for executions, minus US government officials, is currently attempting to distance themselves from it because of either moral or political reasons.

Opposition to the importation of death penalty drugs was also brought by 6 death row prisoners in Arizona, California, and Tennessee. These 6 death row prisoners, who were represented by attorney Bradford Berenson, sued the Food and Drug Administration claiming that federal law was violated by the FDA failing to examine states’ imports of drugs used to carry out executions.

The issue is that the FDA currently allows state prison officials to import sodium thiopental from foreign countries for use in lethal injections. Furthermore, according to the suit, the FDA doesn’t review the safety or purity of the imported drugs. As Berenson said, “The FDA is improperly allowing drugs into the United States even though it won’t stand behind their safety and efficacy.” In retort, the FDA stated, “Reviewing substances imported or used for the purpose of state-authorized lethal injections clearly fall outside of the FDA’s explicit public health role.” This appears to be in direct violation of their purpose: to make sure drugs used in the United States are of quality and are safe. One would think that this is that much more important considering that condemned prisoners are having these drugs forced into them against their wishes by state officials. If the FDA won’t regulate drugs imported and injected into the U.S. population, regardless of how small the sub-group might be, then who will?

The issue becomes even more clouded when you consider that a number of states use lethal injection as their sole or primary method of execution. Of these 35 states Arizona, California, Kentucky, and Tennessee, among others, are low on their sodium thiopental stock.

Since 1976, when the Supreme Court allowed executions to resume, there have been a total of 1,237 executions. Of these, 3 have been via firing squad, 3 via hanging, 11 via gas chamber, 157 via electrocution, and the vast majority 1,063, via lethal injection. Clearly lethal injection is the favorite amongst state-sanctioned bringers of death.

With states that use sodium thiopental for executions panicking to find alternative sources of the drug, legal issues are abounding. According to Kent Cattani, an attorney with the Arizona Attorney General’s Office, Arizona has obtained two shipments of sodium thiopental from the U.K. which should last the state until 2014. This in itself has caused a number of legal challenges as previously noted.

States are now left with three options: import sodium thiopental from overseas, select a different anesthetic, or change their primary method of execution. As previously stated, Arizona has gone with the first option. Ohio, in March 2011, elected to go with the second option by planning to use a single dose of a sedative, pentobarbital, a drug that is used to induce surgical comas, as a single drug protocol for executions. It should be noted that Oklahoma already uses pentobarbital but as part of a three-drug protocol. While no state that primarily or solely uses lethal injection has switched to one of the other methods, the question of what to do is still very much up in the air. As Cattani said, states could have to turn to “Other viable alternatives, like a firing squad.” While there are many questions, there is one answer that is for certain. That is that there will certainly be a number of legal battles that will ensue because of Hospira’s decision to stop U.S. production of sodium thiopental and their decision to produce the drug in a plant in Italy.

Two unexpected turns of events triggered by Hospira’s decisions is increased scrutiny of both the companies that make and distribute drugs used in executions. This scrutiny has prompted the U.K. to ban exports of thiopental to prisons because of their “moral opposition to the death penalty.” The increased public scrutiny of private companies involved in the making and distributing of execution drugs has prompted protests in the U.S. and Europe along with the European Commission considering a ban.

To further cloud the issue, it appears as if pharmaceutical companies were not aware that their drugs were being used in executions. As Jeff George, the head of Sandoz, a unit of Novartis AG, said, “Capital punishment certainly is not an approved indication for this product [thiopental].” He also stated that Sandoz makes the drug for anesthetic and epileptic treatment purposes. He further stated that Sandoz has asked its subsidiaries to not sell the drug to anyone who might distribute it in the United States.

With so many aspects of this whole ordeal going wrong for the pharmaceutical companies and state departments of corrections, it is nice seeing that the death-penalty opponents are receiving a leg up. Since 1976 death-penalty opponents have fought hard to ban executions yet again. Now, with the tools of identifying and shaming drug companies, they might just make some headway. The issue for pharmaceutical companies can be summarized with what Mr. Smith, a death-penalty opponent, said, “I’ve yet to find any pharmaceutical company that says their corporate ethos is to go around and kill people.”

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).

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