Earlier today the pharmaceutical company Pfizer announced restrictions to the sale of seven of its drugs to better control the uses of said drugs (H/T The New York Times). Each of the covered drugs has specific medical applications (and all are approved by the Food and Drug Administration – FDA – for those medical applications) but they can be used in executions by lethal injection. The relevant drugs are:
- Propofol (anesthetic)
- Pancuronium bromide (muscle relaxant)
- Midazolam (anesthetic)
- Hydromorphone (opiod analgesic, lethal in sufficient dosage)
- Rocuronium bromide (muscle relaxant)
- Vecuronium bromide (muscle relaxant)
- Potassium chloride (helps the body replenish potassium, but can stop the heart in sufficient dosage)
While drug shortages have prompted some changes in execution drug protocols, typically the procedure is to administer an anesthetic, followed by a muscle relaxant and then potassium chloride to stop the heart. Alternatives to the three-drug protocol have tried lethal doses of an anesthetic, or combine the anesthetic with a lethal dose of an opiod.
Pfizer’s action marks the closing of the last open market source of these drugs for use in executions. If you compare the new Pfizer policy with the one it replaced, (H/T Joanne Stocker) while the company was not in favor of having its drugs used in executions, it acknowledged that Pfizer drugs could still be acquired through third party channels. The new policy suggests that Pfizer will take steps to foreclose such workarounds, and will insist that government purchasers of its drugs affirm to the company that they will use the drugs only for patient care and will not resell or otherwise provide to other parties.
This is unlikely to eliminate the death penalty, but will certainly contribute to the trend of fewer executions by lethal injection. States will probably continue to seek the appropriate drugs through channels like compounding pharmacies (which are not subject to FDA regulations). However, there is now no FDA-approved U.S. manufacturer of these drugs willing to provide them for execution (or to allow such provision through the gray market and/or alternate providers), so what has been a tough task will become much tougher.
I would also expect states to ensure that they have alternate methods of executions available in situations where drugs are not available at the time of execution. While some states have alternate methods of execution as an option, lethal injection has been the primary method of execution for all states and the federal government for a few years. The ongoing drug restrictions have prompted a few states to amend their laws to accommodate the possibility of lethal injection not being available.
Additionally, the Supreme Court has resisted efforts to have lethal injection declared unconstitutional, and in the last death penalty case it heard (Glossip v. Gross), several of the Justices were frustrated by what was perceived as an end run around the Supreme Court by restricting the ability to procure the necessary drugs. In other words, the state’s ability to execute should not be infringed by drug companies seeking to restrict the use of their products to only medically approved uses.
It will take time for the implementation of Pfizer’s new policy to have an effect. But the short shelf life of many drugs means that whatever amount from Pfizer of those seven compounds is in the hands of prisons will become unusable in the next several months.