"In the face of numerous manufacturers' refusal to produce drugs used in executions, many US states, in efforts to continue the grisly ordeal of capital punishment, have begun relying on chemicals formulated in unregulated compounding facilities.
The botched execution of 53-year old Ohio death row inmate Dennis McGuire last week allowed many to see the results of using such drugs. The prisoner, given a dose of the sedative midazolam and the painkiller hydromorphone—two drugs previously involved only in the euthanizing of animals—writhed in agony for nearly 25 minutes before being pronounced dead. In the aftermath of this spectacle, many questioned the constitutionality of the methods that are being increasingly used in state executions.
"They're engaging basically in acts of desperation," stated Deborah Denno, a law professor at Fordham University, adding, "The states are under enormous pressure to continue with the death penalty." Denno further explained that the compounding facilities, which nominally fall under the regulation of states, have been able to skirt oversight by presenting themselves as minor hubs, rather than major drug-production facilities. "They act like large-scale pharmaceutical companies while hiding behind small-scale pharmacy licenses," she stated.
The two-drug combination tried on McGuire was an experimental mixture purchased from an unnamed compounding facility specializing in the creation of customized drugs intended for the specialized needs of patients. The danger of these unregulated facilities was demonstrated in 2012 when a massive meningitis outbreak was traced to unsafe conditions at a compounding facility in Massachusetts. That outbreak killed 64 people and infected several hundred others, many of whom had only sought relief for neck pains and other mild conditions. (See " The meningitis outbreak and health care for profit ").
Prior to its administration of the two-drug dosage, the state of Ohio had engaged in a single-drug procedure involving pentobarbital, a sedative. That drug was used on Michael Lee Wilson two weeks ago. Wilson was quoted as saying "I feel my whole body burning" when given the drug.
Traditionally, states have relied on a three-drug combination in lethal injection procedures, preferring the mixture of potassium chloride, pancuronium bromide and pentobarbital. However, as pharmaceutical companies have increasingly attempted to distance themselves from the barbaric procedure, states still carrying out the death penalty have faced increasing difficulty in obtaining reliable drugs for executions.
Missouri, which is set to execute inmate Herbert Smulls on January 29th, has been asked by the inmate's attorneys to delay the state killing on the grounds that the drugs involved, distributed by an unlicensed Oklahoma-based compounding plant, were believed to be "expired [and] unsafe." Smulls would be the third prisoner executed in the state in as many months, as well as the second to die through the administration of an untested drug combination produced at such a facility. According to the Death Penalty Information Center, six states have turned to the unregulated facilities in recent years.
As a means of shielding themselves from political fallout, states have taken to enforcing secrecy laws, protecting the identity of the firms that produce their lethal chemicals. "Once that compounding pharmacy's identity is revealed, how will the Department of Corrections ever get another compounding pharmacy to sell to us?" said Missouri Assistant Attorney General Sabrina Graham in a statement to National Public Radio last summer.
Tony Rothert of the American Civil Liberties Union, which has launched a lawsuit in the state of Missouri in order to obtain the identity of the drug manufacturer, said, "The state has gone to great lengths to hide what it is doing and to be secretive about what it is doing. So it's not surprising that there's something there that the state was trying to cover up." He added, "When you violate Missouri law to carry out Missouri law, that seems contradictory."
The dangers of untested mixtures on prisoners are many. In Missouri alone, the state's Board of Pharmacy has found 20 percent of all the drugs produced at compounding plants to be substandard. According to Meagan McCracken of the Death Penalty Clinic at University of California, Berkeley, "If the first drug does not in fact deeply anesthetize the prisoner…then he or she could be conscious and aware of being both paralyzed and able to experience pain and the experience of cardiac arrest."
This danger is increased in the case of the drug midazolam, which has increasingly been turned to in medical practices as a safe alternative to barbiturates, making its application in lethal injections dubious. Joel Zivot, an assistant professor of anesthesiology at Emory University in Florida, criticized his home state in an article in USA Today last month, saying, "How Florida granted itself expertise in the use of midazolam, now repurposed as a chemical used to kill, is known only to Florida.""
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