Chris McDaniel at Buzzfeed reports that the previously unnamed compounding pharmacy that secretly supplied pentobarbital as the lethal injection drug the state of Missouri has used for 17 recent executions has a history of sloppy work, out-of-court settlements over accusations of misconduct, and Food and Drug Administration violations. Payments to the company for the drug were in cash, handed over at meetings that read more like amateur spycraft than anything approaching a normal business transaction. This arrangement allowed the state to schedule an execution a month, a speed-up that soon cleared its death row of inmates:
Procuring execution drugs has become almost impossible, as major pharmaceutical companies stopped making them or refused to provide them for capital punishment. Missouri itself faced a crisis in early 2014, when the previous pharmacy it had been using was exposed in the press and stopped providing the state with drugs. Scrambling, Missouri found a new pharmacy and stockpiled the lethal injection drug pentobarbital, enabling it to set a record pace for executions, scheduling one a month for more than a year.
To hide the identity of the new pharmacy, the state has taken extraordinary steps. It uses a code name for the pharmacy in its official documents. Only a handful of state employees know the real name. The state fought at least six lawsuits to stop death row inmates and the press from knowing the pharmacy’s identity. Even the way Missouri buys and collects the drugs is cloak-and-dagger: The state sends a high-ranking corrections officer to a clandestine meeting with a company representative, exchanging an envelope full of cash for vials of pentobarbital. Since 2014, Missouri has spent more than $135,000 in such drug deals.
Perhaps to that majority of Americans who still favor imposing capital punishment, which drug is used to kill a convicted person and the source of that drug are of little concern. For those condemned to die and their lawyers, however, it’s a big deal. Tainted drugs could leave an inmate alive but brain-damaged or could kill him with painful slowness.
The 14-year-old pharmacy is Foundation Care, based in the suburbs of St. Louis. Just a few months ago, it was sold to a subsidiary of the Centene Corporation, a large health services company. It’s unknown if the new owners will continue the cloak-and-cash arrangement for providing the state with pentobarbital.
One question raised in McDaniel’s report is whether Foundation Care bought its pentobarbital from Akorn Pharmaceuticals, the only company in the nation licensed to manufacture the drug. Or did it create the stuff in its own compounding laboratory? Akorn requires its distributors to sign agreements that they will not sell its products to executioners.
And, other questions aside, if Foundation Care does make its own pentobarbital, does it do a good job? Court documents indicate that there’s no guarantee that it does.
In 2007, after a patient took a drug supplied by Foundation Care developed pneumonia, an FDA investigation found that the pharmacy was not testing all its drugs for sterility and bacterial contamination. Confronted, it offered a cock-and-bull story that the FDA did not buy. Then, in 2013, the agency labeled Foundation Care a “high-risk” pharmacy after finding “multiple examples” of poor procedures that it said “could lead to contamination of drugs, potentially putting patients at risk.”
In a lawsuit that year, two former senior employees claimed that Foundation Care resold drugs returned by patients, a violation of regulations, intentionally omitted the names of some ingredients it used in compounding drugs, and failed to inform regulatory authorities in other states that it had paid $300,000 to Kansas in a settlement over accusations of Medicaid fraud. Another employee has sued Foundation Care over a firing she called retaliation for her having reported “serious operational violations” at the pharmacy to the Missouri Board of Pharmacy. That case was settled out of court.
Lethal injection has steadily replaced other methods of execution in the United States, each of which has occasionally resulted in horrific results, some best described as torture, though presumably inadvertent, a byproduct of incompetence. Executing people with a needle was seen as more humane than hanging, gassing or frying them. But lethal injections don’t keep executions from being botched.
Obtaining drugs for use in lethal injections has become more difficult thanks to pressure from death-penalty foes.
For years, one of the most commonly used drugs in execution cocktails throughout the United States has been sodium thiopental. However, this is no longer manufactured in the United States nor is it available from Europe since the 2011 EU ban on U.S. use of European-manufactured drugs in American executions. Arizona tried to import some sodium thiopental illegally from India, but the FDA seized the shipment at the Phoenix airport.
Officials in some states have pondered reviving older methods of execution to avoid the problems with lethal injection. After an 11-year hiatus, Utah in 2015 added its old method of a firing squad as a back-up for lethal injection. Hanging is still a legal method of execution in Delaware, New Hampshire, and Washington. And eight states still have the option of the electric chair.
None of this would be an issue, of course, if the 31 states that still exercise the death penalty would follow the EU’s lead and abolish it.
But, nationwide, according to the latest Gallup Poll on the subject in October 2017, 55 percent of Americans still support the death penalty against 41 percent who oppose it. The high point for foes of the death penalty was 50 years ago, when a 47 percent plurality was against and 42 percent said they were in support. The low point was 1994, when 80 percent of Americans said they favored the death penalty and just 16 percent opposed it.