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story.lead_photo.caption Abe Bonowitz comforts Lynn Scott (second from left) outside the Cummins Unit during a vigil with Judy Johnson, Randy Gardner and other protesters shortly after all of the stays for Ledell Lee’s execution were exhausted late Thursday. - Photo by Staton Breidenthal

Three hours before Thursday's executions were scheduled to begin, the Arkansas Supreme Court vacated a lower-court ruling that had prevented the state from using its supply of vecuronium bromide to stop the condemned inmates' breathing.

The state Department of Correction, which carries out the state's death penalty, had been barred from using the drug by order of Pulaski County Circuit Judge Alice Gray.

In vacating Gray's order, the high court did not reveal its reasoning. State lawyers had argued that Gray had exceeded her authority.

The justices' ruling also rejected two pharmaceutical manufacturers' petition related to the case. The companies say Arkansas is likely planning to use their products in the executions. They cited the Department of Correction's limited disclosures last year regarding the drugs.

Fresenius Kabi USA LLC of Illinois and West-Ward Pharmaceuticals Corp. of New Jersey stated in their petition that they have gone to great effort to keep their products from being used in lethal injections because they want their medications to be used to save lives and treat injuries and illnesses.

In their pleading, the companies warned that by buying up supplies of the drugs and hoarding them to be used only in executions, states like Arkansas are keeping those medications away from people who need them.

"The use of the medicines for lethal injections creates a public-health risk by undermining the safety and supply of lifesaving medicines," Searcy attorney Brett Watson wrote on behalf of the companies.

"Diverting the medicines to executions and away from health care creates unnecessary shortages for patients who need them most. Medicines that could be used to protect life are instead being used to end it. The unintended consequence could be to undermine the supply and to place patients in Arkansas and across the country at risk," Watson wrote.

Fresenius, a U.S. subsidiary of German drug manufacturer Fresenius Kabi, makes the heart-stopping potassium chloride. West-Ward, a subsidiary of British-based Hikma Pharmaceuticals PLC, manufactures midazolam, the tranquilizer used to sedate inmates before the two killing drugs are administered.

Both companies also filed "friend of the court" briefs last week in a federal court case in which death-row inmates sought to delay their executions. U.S. District Judge Kristine Baker did not rule on the pharmaceutical manufacturers' arguments when she ruled on the inmates' plea.

Gray's order on the vecuronium bromide was in response to a lawsuit by Virginia-based McKesson Medical-Surgical Inc., a longtime vendor of the state prisons department.

McKesson sold the paralytic to the Correction Department in a transaction that the company says was a mistake. McKesson's contract with the manufacturer barred sales when the drugs were going to be used in executions, the company stated. The manufacturer has since been revealed to be Illinois-based Hospira, a subsidiary of pharmaceutical giant Pfizer of New York.

McKesson sued to get the drugs back, claiming that prison officials had acted underhandedly to obtain them, then had reneged on a promise to return the drugs even after McKesson refunded the state's money.

According to the latest figures available on the Arkansas Transparency website, McKesson's parent company earns about $7.8 million annually from the state, almost all of that through its medical-surgical distribution branch, which sold the vecuronium bromide to the state.

With Arkansas' executions looming, McKesson petitioned Gray for a temporary restraining order to bar the state from using the vecuronium bromide until the ownership of the drugs could be decided in court.

After a five-hour hearing Wednesday, Gray granted the drug supplier's petition and barred the state from using the medication.

In her ruling, Gray said McKesson had presented sufficient proof to call the ownership of the drugs into question and had shown evidence that state prison officials had exceeded their authority in obtaining the drugs.

Attorney General Leslie Rutledge, whose lawyers are representing the Correction Department, appealed immediately to the state Supreme Court, asking that Gray's order be canceled.

In their arguments to the high court Thursday, state lawyers contended that Gray had exceeded her authority because her prohibition on the drugs acted as a stay of execution and that circuit judges do not have the authority to block executions.

They also claimed that Gray had wrongly declined to recognize the state's sovereign immunity from such lawsuits and that she also should have determined that McKesson has no legal grounds to sue.

State lawyers also objected to Wednesday's hearing after filing a change-of-venue motion, saying that they were entitled to move the litigation from Pulaski County to Faulkner County. No one from the state would say why they wanted the lawsuit removed from Pulaski County or why they preferred to have the case heard in Faulkner County Circuit Court.

Gray's ruling was the second time in six days that a Pulaski County circuit judge had barred the state from using the vecuronium bromide. Judge Wendell Griffen imposed a ban last week, also in response to a McKesson lawsuit.

The company moved over the weekend to withdraw its lawsuit after a federal judge stayed all of the state's executions. But when a federal appeals court dissolved that stay, McKesson reinstated its lawsuit.

By that time, Griffen had been barred by the state Supreme Court from hearing any death-penalty-related litigation, so McKesson's second lawsuit was assigned to Gray.

A Section on 04/21/2017

Photo by Staton Breidenthal
Attorney General Leslie Rutledge is shown in this file photo.

Print Headline: Justices clear stops on lethal drug

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  • RBear
    April 21, 2017 at 5:19 a.m.

    No wonder I couldn't find the opinion on the order to vacate the stay. They never issued any details. Pretty chickin sh** of the AR Supremes, but it is within their right to not explain their reasoning. However, in looking at the state's case I can see the path to vacate. It was all about legal angles and the state had the angles in this case of deception by ADC. Of course, it's now going to make drug companies less likely to do business with the state, potentially creating problems for those inmates with legitimate medical needs. In other words, in the state's rush to kill it disregard the extended ramifications of its deception.
    The bottom line is the state can lie about its intentions and get a free pass on its immunity claims. Yea, the darker side of "justice."

  • DontDrinkDatKoolAid
    April 21, 2017 at 5:41 a.m.

    I find no argument with your post RB, however bullet or rope may be the next instrument.

  • RBear
    April 21, 2017 at 7:39 a.m.

    DDDKA, that's the interesting part of this issue. In one of the opinions by the 8th Circuit, they actually ruled out firing squad as an acceptable alternative as well as nitrogen hypoxia. Honestly, if we're going to execute folks we need to find a challenge-proof method that doesn't put us back in this situation. Hypothetical statement: Do you realize how much money was spent because Arkansas didn't have their protocol ready and solid?

  • skeptic1
    April 21, 2017 at 9:02 a.m.

    I do not object to the death penalty on moral grounds but it's time to abolish it. Death penalty defendants are entitled to appeal (paid for by the taxpayer) all the way to the US Supreme Court which takes years and costs upward of a million dollars in legal fees over the usual 20 years. That is a complete waste of resources plus, there have been a disturbing number of death row inmates exonerated prior to their execution, we cannot justify putting to death even one innocent person. Let them rot in prison for life, that is far worse than death.

  • NoUserName
    April 21, 2017 at 9:37 a.m.

    The state spends enough money that I doubt many businesses will voluntarily decide not to sell drugs to the the state. As for challenge proof, given how often this particular cocktail has been challenged in court, even after courts let it stand, I submit that there will no such thing. Interestingly, drugs that would be far more amenable (e.g pentobarb), are unavailable due to manufacturers restrictions in selling the drugs (due to court challenges and the resulting bad press). The inmates and lawyers, ironically, are essentially the reason this cocktail is used.

  • MaxCady
    April 21, 2017 at 9:51 a.m.

    Glossip v. Gross. I thought this was all worked out with the U.S. Supreme Court.

  • MaxCady
    April 21, 2017 at 10:09 a.m.

    I wonder if Lynn Scott was boo-hooing like that when she first found out about the victims of Ledell Lee?

  • mrcharles
    April 21, 2017 at 11:30 a.m.

    Remember DAK said today that with all the wasted efforts , using DNA exonerates far less than are proven guilty. Since the odds are most are guilty, a few whoops I guess is worth it unless you are the "whoops". And the mantra of our tax money, well how will we pay to blow up stuff in other countries and then rebuild it to line some ILKS pockets if we spend money to save one innocent convicted killer.

    Anyway we all die it is just a matter of when. Perhaps we can agree that the government that cant do anything right will just be left with only 2 certainties to overlord over on us......., to legislate our adult sex life and to kill inmates.

    Did he have communion and was it good wine or mogan david 20 20