A death penalty-averse pharmaceutical company in New York manufactured a sedative that wound up in the hands of Arkansas' executioners, court documents revealed Wednesday.
A batch of midazolam, purchased by prison officials from an unnamed supplier in August, was to have been used in the lethal injection of Jack Greene tonight until the Arkansas Supreme Court stayed the punishment Tuesday.
A lawsuit that was unrelated to Greene's appeals for a stay forced the state prison system Wednesday to disclose documents that came with the purchase of midazolam. The documents were printed with the logo of the manufacturer, Athenex Inc. of Buffalo, N.Y.
Within hours of the documents' release, the company put a statement on its website declaring that it opposes the use of its products in imposing the death penalty and that the company had implemented controls aimed at keeping its drugs away from entities who plan to use them in executions.
[DEATH PENALTY: Interactive tracks allexecutions in U.S. since 1976]
"Athenex does not accept orders from correctional facilities and prison systems for products believed to be part of certain states' lethal injection protocols," the statement read. "Further, Athenex distributors and wholesalers have agreements with Athenex not to sell or distribute any such products to these facilities."
A senior executive with the company, who asked that his name not be publicized to prevent being contacted, said the company had spoken with its "handful" of distributors Wednesday and asked them to determine which of their clients sold the drugs to the Arkansas Department of Correction.
Athenex is the fourth company this year to suggest Arkansas prison officials skirted safeguards in order to obtain lethal-injection drugs. The state has carried out four executions, all in April, and Greene was intended to be the fifth.
Midazolam is the first of three drugs used in Arkansas' lethal-injection process, followed by vecuronium bromide and potassium chloride. A sedative, it is intended to render the prisoner senseless in preparation for the other two drugs to paralyze and stop the heart.
Death-penalty critics and some doctors, however, have said that midazolam -- a common benzodiazepine related to Valium -- is ill-suited for the task.
Athenex does not stand alone in the pharmaceutical community with its stance on the death penalty. For years, death-penalty states have complained that opposition by drugmakers and suppliers, especially those in Europe, have made it difficult to maintain a supply of lethal drugs.
For that reason, Arkansas lawmakers in 2015 updated the state's Method of Execution Act to prevent the disclosure of materials that could be used to identify the suppliers of its lethal-injection drugs. The law allows for the release of drug labels and package inserts, but after an Associated Press reporter was able to use those documents to identify a supplier, the Department of Correction stopped releasing those documents.
Little Rock attorney Steven Shults filed suit against the department in March after the agency denied his request for documents related to execution drugs. When the state announced that it had purchased vials of midazolam in August, Shults filed another request with the agency and, after it was denied, another lawsuit.
Both of Shults' lawsuits made their way to the Arkansas Supreme Court, which ruled last week that the Department of Correction could not keep secret the manufacturers of its execution drugs, because the makers had not been specifically included in the law. However, the high court said officials could still redact certain information that could be traced back to whoever sold the drugs to the state.
The case was remanded to the lower court. Pulaski County Circuit Judge Mackie Pierce late Tuesday ordered the state to produce the documents. On Wednesday morning, the redacted documents were uploaded to the court's website.
Shults' lawyer, Heather Goodson Zachary, said she didn't know what her client planned to do with the documents now that he has them.
"His concern all along has been assuring that there is the fullest transparency in the execution process," Zachary said. Shults did not return a request for comment left at his office.
Before Athenex was identified as the maker of Arkansas' most recent drug acquisition, lawsuits and news reports had identified the makers of the other drugs that would have been used on Greene.
Documents released to the Arkansas Democrat-Gazette from the state prison system confirmed those sources: a batch of vecuronium bromide purchased in 2016 was stamped with the label of Hospira Inc., a Pfizer subsidiary; and potassium chloride obtained in March had the label of APP Pharmaceuticals, a subsidiary of the German drugmaker Fresenius Kabi.
Both of those companies have stated that they don't want their drugs used in executions.
Asked by a reporter about the situation, Gov. Asa Hutchinson said Wednesday that he did not think the state would be able to find a manufacturer that was OK with supplying drugs for a lethal injection.
"I don't know that that type of manufacturer exists," Hutchinson said. "I think the question is, do we need to come together to amend the law to make sure that it's a broader confidentiality law?"
Hutchinson clarified that he did not intend to call a special session on the matter. The Legislature next meets for a general session in 2019.
In April, European pharmaceutical company Fresenius Kabi and the maker of a now-expired supply of midazolam tried but failed to block the state from using their products for executions.
Additionally, one of the distributors that sold execution drugs to Arkansas, McKesson Corp., said in a lawsuit that it made the sale unwittingly after being misled by prison officials. McKesson's April lawsuit remains pending before the Arkansas Supreme Court.
Arkansas carried out four executions that month, though another four were stayed for other reasons.
With Greene's execution on hold as his attorneys seek a new mental evaluation, Arkansas has no plans to carry out executions before year's end.
State law requires executions be carried out using either the three-drug method of lethal injection or a deadly dose of barbiturates. However, if courts strike down lethal injections, the law allows for the use of the electric chair.
Information for this article was contributed by Noel Oman of the Arkansas Democrat-Gazette.
Metro on 11/09/2017