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Drug now out of date; Arkansas executions all on hold

by John Moritz | April 30, 2017 at 2:30 a.m. | Updated May 1, 2017 at 4:30 a.m.

After executing four men by lethal injection in the past two weeks in a rush to beat a drug expiration date, Arkansas now finds itself with 29 more inmates condemned to die and no clear idea what to do next.

Today, Arkansas' supply of midazolam, a sedative used to begin the deadly injections, expires.

That expiration date drove the state to schedule eight executions over the past two weeks. Court stays indefinitely delayed four of them.

Critics expressed anger that the state would press to kill so many so quickly because of a product expiration date. The Atlantic wrote on April 13 that "even by the degraded standards of American public life in 2017, what will shortly happen in Arkansas stands out for its brutality and lawlessness."

On Friday, citing what he believes is Arkansans' support for the death penalty, Gov. Asa Hutchinson said he's comfortable with the state's current three-drug protocol for executions -- midazolam to sedate, vecuronium bromide as a paralytic and potassium chloride to stop the heart.

"My sense is that the people of Arkansas still support the death penalty as an option," Hutchinson told the Arkansas Democrat-Gazette in an interview Friday. His responsibility is carrying out the law and the jury-imposed sentences, said the governor, a former federal prosecutor.

But officials in Arkansas and 30 other states that still sentence criminals to death acknowledge it has become increasingly difficult to procure the necessary drugs for lethal injections, the preferred execution method in nearly every state.

More than two dozen drugmakers in the United States and Europe -- including Pfizer and other companies that supplied Arkansas' lethal injection chemicals -- have tightened distribution to prevent their products from being used to carry out death sentences.

Drug manufacturers have adopted those policies "either for moral reasons or, in some cases, due to pressure from investors," according to STAT, an online publication that covers drug and medical news with The Boston Globe.

Asked if attention from outside the state would make it more difficult to find a source willing to supply a new batch of midazolam or other drugs, Hutchinson called the situation "unpredictable."

"I don't have the answer to that question," Hutchinson said. "I have some confidence that there will be a supplier and availability of the drug when it is needed again, but there is no guarantee of that."

Arkansas law prevents the sources of its lethal injection drugs from being disclosed.

But companies that supplied the drugs used in this month's executions stepped forward publicly to accuse state officials in court of skirting company policies to procure the drugs. The companies said they would not have sold their products to the state if they had known the intended use.

Pharmacist groups also have voiced opposition in recent years to using drugs or pharmacy expertise for executions.

The American Pharmacists Association "discourages pharmacist participation in executions on the basis that such activities are fundamentally contrary to the role of pharmacists as providers of health care."

In 2014, the International Academy of Compounding Pharmacists issued advice to its members to consider "several business issues ... separate from the ethical and legal ones," if they consider providing drugs for executions.

Compounding pharmacies prepare drugs from chemical ingredients in small, personalized batches under a doctor's order.

Their association discourages providing drugs for executions. Its business advice: "Consider potential security implications to your practice, your employees and your families. Given that the death penalty is a controversial and very high-profile issue, having your pharmacy known as the source of the lethal medicine may bring unwanted attention -- from the media, picketing by death penalty opponents, threats, etc." Another tip was to review the pharmacy's liability insurance coverage.

Asked Friday if Arkansas might have to manufacture its own lethal drugs to continue executions, Hutchinson said no. But he said compounding pharmacies might be one solution.

A prison spokesman said last week that he was not told about any state efforts to obtain a new drug supply. Hutchinson told reporters Friday that he had not ordered such a search.

No more executions are scheduled now in Arkansas, but Texas, which executes more inmates than any other state, has set several dates into this summer.

Texas has executed four inmates so far this year.

"We have five more scheduled through July," Texas Department of Criminal Justice spokesman Jason Clark said Friday. "We have an adequate [drug] supply to carry out all the executions currently scheduled."

Texas uses a one-drug protocol for executions, the anesthetic pentobarbital, a barbiturate.

Of 30 executions carried out in the United States since January 2016, 22 of them used that single drug, according to the Death Penalty Information Center in Washington.

Clark said Texas formerly used three drugs for lethal injections, similar to Arkansas, until 2012 when "we were unable" to buy one of them.

"We moved from a three-drug protocol to a one-drug protocol because of the landscape of drugs that were available," Clark said.

Texas uses a compounding pharmacy as its supplier.

"We have been transparent that we had purchased pentobarbital from a pharmacy with the ability to compound," Clark said.

He wouldn't name the supplier. Texas, like Arkansas and several other death penalty states, has enacted recent laws that permit state officials to keep secret the names of companies that provide the deadly drugs.

Arkansas has conducted lethal injections in a manner similar to Texas' in past years. But after using a massive dose of a single barbiturate to execute Eric Nance in 2005, the state had difficulty maintaining its supply.

Lawmakers twice rewrote the state's method of execution law before landing on the current three-drug combination in 2015. Barbiturates remain a backup option, but state attorneys have said in court filings that they cannot find a suitable supplier.

Despite problems obtaining lethal drugs, state officials have resisted proposals to move toward other execution methods.

While a 2015 law says Arkansas can use electrocution if a court bars lethal injection, prison officials have downplayed it as an option. They point out that the state's old electric chair sits in a museum.

Lawmakers have mentioned using gas asphyxiation, only to be warned that that would give prisoners a whole new path of litigation. (A shell bill filed this year went nowhere.)

At a news conference Friday, Hutchinson said he doesn't want to consider a request from condemned inmates for firing squads.

"I think that takes us back," he said. "I don't think that is acceptable in today's world."

Adopting a new method of execution would require a change in state law, and the General Assembly is not scheduled to meet again in Little Rock for a regular session until 2019.

Hutchinson said he considered adding the matter to issues going before the Legislature in this week's special session, but decided against it. Leaders of the House and Senate agreed, saying they hoped to finish the special session in three days and go home.

"We need to allow some time to pass from what's occurred," said Senate President Pro-Tempore Jonathan Dismang, R-Searcy.

The 29 men in solitary death row cells on Cell Block 4 of the Varner Supermax prison are used to waiting.

The most recent newcomer arrived in November. The longest has been there since 1989. The four cells left vacant by this month's executions of Ledell Lee, Jack Jones Jr., Marcel Williams and Kenneth Williams have already been filled, according to prison spokesman Solomon Graves.

Four of death row's inmates -- those spared by courts in recent weeks -- have run out of appeals on their convictions. The rest are in various stages of the legal process that, once exhausted, could make them eligible to die.

The four who received April reprieves are Jason McGehee, Don Davis, Bruce Earl Ward and Stacey Johnson. A fifth death row prisoner, Terrick Nooner, also has completed his appeals but was recently deemed incompetent to be executed.

A federal judge's stay of McGehee's execution is to run out in mid-May, at which point Attorney General Leslie Rutledge could begin the process of again setting up an execution, her spokesman said Friday.

Judd Deere, the spokesman, said Rutledge will use her discretion in asking the governor to schedule more executions as court stays that were issued in April expire or more prisoners exhaust their appeals.

Deere declined to say whether Rutledge would again ask Hutchinson to set execution dates if the state does not have an adequate drug supply to carry out lethal injections, as she did in February when the state's supply of potassium chloride had run out.

Rutledge's attorneys -- several dozen of them -- have spent much of the past month responding to the flood of legal appeals by the prisoners.

Hutchinson and his staff worked late into the night around April's four execution dates, as lethal injections were delayed while judges deliberated, then were carried out just a few hours -- or minutes -- before midnight deadlines. Hutchinson aides were seen carpooling out of the Cummins prison unit Thursday after midnight.

Asked when he would be comfortable setting more execution dates, Hutchinson said Friday: "I don't even want to think about it right now, quite frankly."

Metro on 04/30/2017

Print Headline: Drug now out of date; executions all on hold


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