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Drug companies take aim at Arkansas executions and demand lethal injection drugs back

Eight men were originally scheduled to be executed in Arkansas. Jason McGehee, bottom row on the far left, had his execution delayed last week. (Arkansas Department of Corrections via Agence France-Presse via Getty Images)

UPDATE: Early Friday evening, an Arkansas judge prohibited the state from using one of the lethal injection drugs. Head here for more on that order; continue reading for more about why the drug companies objected. 

As Arkansas prepares to carry out an unprecedented string of executions beginning next week, the state is facing new criticism over the lethal injection drugs it plans to use, along with questions from pharmaceutical companies about how the drugs were obtained.

On Monday, Arkansas plans to carry out two executions back to back, with the schedule calling for seven lethal injections over an 11-day period. This frantic push has caused unease among corrections officials and civil rights advocates, but authorities in the state have defended it, saying the time frame is needed because one of the state’s three lethal injection drugs will expire at the end of the month.

“It is uncertain as to whether another drug can be obtained,” Gov. Asa Hutchinson (R) said in a statement, alluding to an ongoing shortage of lethal injection drugs prompted, in part, by drug companies’ objections to their chemicals being used in executions.

With lethal injection drugs expiring, Arkansas plans unprecedented seven executions in 11 days

But just days before Arkansas hopes to carry out its first execution in 12 years, two pharmaceutical companies have asked a federal court to keep the state from using their drugs. They have criticized Arkansas for how it seemingly obtained the drugs, with one company saying that the state had been refunded its money and promised to return the drug, only to repeatedly break that vow.

The drug companies have also been critical of Arkansas state officials, describing repeated unsuccessful attempts to pry information out of the state and get their drugs back. At least one company says it is not even sure which drugs Arkansas might have — or if the state has them at all.

Mystery surrounds the lethal injection drugs Arkansas plans to use due to the state’s secrecy laws. While the state has confirmed the types of drugs that will be used, it remains unclear where and when they were obtained. It’s unclear even to the companies getting involved in the legal battle over the executions because they believe their chemicals might be involved.

The lethal-injection procedure Arkansas plans to use beginning Monday evening involves three drugs. The first is midazolam, a controversial sedative that has been used in bungled or unusually long executions in Oklahoma, Ohio, Arizona and, in December, Alabama. This drug was acquired by Arkansas in 2015, just days after the Supreme Court upheld its use in Oklahoma’s executions, according to documents the state provided to The Washington Post, and is the one that officials say expires at the end of April.

After the inmates are injected with midazolam and deemed to be unconscious, officials will then inject them with vecuronium bromide, a paralytic, and potassium chloride, which stops the heart.

A guide to the drugs used in lethal injections

Documents released by the state show that the vecuronium bromide was obtained in 2016 and the potassium chloride in March, the week after Hutchinson set the execution dates, but they reveal little else.

Pointing to a secrecy law shielding the state from revealing most information regarding its lethal injection drugs, the Arkansas Department of Corrections declined to say when the other drugs expire or where any of the drugs were obtained, at what cost and how much the state has on hand. In an email to The Post, a spokesman said the secrecy law “prohibits the disclosure of any information that may lead to the identification of the manufacturers or suppliers of the drugs used in an execution.”

This secrecy appears to extend to the companies that make the drugs. In a court filing this week, two companies — Fresenius Kabi USA and West-Ward Pharmaceuticals — say they “recently learned” that medicine they manufacture might be used in Arkansas lethal injections. The companies revealed this in an amicus brief submitted as part of a federal lawsuit inmates facing execution have filed against state officials.

“When the medicines could be used to protect life, they are instead being used to end it,” the companies state. Using their medicines in executions “runs counter to the manufacturers’ mission to save and enhance patients’ lives” and creates a shortage for patients who need the drugs as well as a public-health risk, the companies write in the brief.

Executions and death sentences plummeted last year as capital punishment declined nationwide

Spokesmen for the Arkansas Department of Corrections and Attorney General Leslie Rutledge (R) declined to answer lists of questions about the drugmakers’ concerns. A spokesman for Hutchinson, who is listed as one of the defendants in the inmates’ lawsuit, did not respond to a request for comment.

Arkansas officials have defended the rushed schedule and said that further delays would deny justice for relatives of the victims. Hutchinson had originally scheduled eight executions, but one was halted by a judge after a parole board said it would recommended commuting his sentence to life in prison.

The seven remaining executions in Arkansas are scheduled to take place between Monday, April 17, and Thursday, April 27. The seven inmates were convicted of capital murder and sentenced by the year 2000. The Fair Punishment Project at Harvard Law School, in a recent report, expressed concerns with their cases, saying that some of the men appear to suffer from intellectual impairment and outlining qualms about the legal representation they had. The seven inmates continue seeking to stay the executions through court filings and have asked the U.S. Supreme Court — which denied a request to hear their case in February — to reconsider.

The executions Justice Sotomayor calls ‘horrifying deaths’

They are also pressing a case, with other death-row inmates, in the U.S. District Court for the Eastern District of Arkansas. The pharmaceutical manufacturers, filing an amicus brief Thursday in that case, said that while the companies took no position on capital punishment itself, they asked a judge to keep the state’s Department of Corrections from using their drugs for an execution.

The companies do not identify which of their drugs are being used in the executions. According to Fresenius Kabi’s product listing, it sells midazolam as well as potassium chloride, while West-Ward’s product listing includes midazolam but not potassium chloride. A spokesman for Fresenius Kabi said the company believes Arkansas has its potassium chloride, the drug state officials obtained last month.

Keri Butler, a spokeswoman for West-Ward, told The Post on Friday that the company suspects Arkansas has its midazolam but that state officials would neither confirm or deny this.

Butler said the company objected to the use of its drugs in lethal injections and has made repeated, and unsuccessful, attempts at reaching out to the governor, attorney general and corrections department to confirm that Arkansas has their drugs and have them returned. The Fresenius Kabi spokesman similarly said the company has reached out to the governor and his staff for guarantees the drug will not be used in executions but, so far, they have not heard back.

The secrecy provisions in Arkansas and other states mean “there are things that we can piece together” about the drugs involved, but other details remain shrouded in mystery even for companies that make such drugs, said Robert Dunham, executive director of the Death Penalty Information Center.

“That’s the ongoing problem with the secrecy provisions,” Dunham said in an interview. “The secrecy provisions, as they so frequently have done in other states, are preventing the drug manufacturers from learning whether their contracts have been breached.”

In a shift, the U.S. was not among the world’s leaders in executions last year

Noting that they have worked with wholesalers and distributors to prevent their drugs from being used in lethal injections, the two companies say in their brief that these efforts appear to “have been bypassed.” Both companies say they have no record of a direct or indirect sale of medicine to the Arkansas Department of Corrections.

“The only conclusion is that these medicines were acquired from an unauthorized seller in violation of important contractual terms that the manufacturers relied on when selling the medicines,” the brief states.

Also on Thursday, the pharmaceutical giant Pfizer spoke out against Arkansas for obtaining one of its drugs. The company has repeatedly spoken out against the use of its drugs in lethal injections, last year tightening its restrictions to further ensure Pfizer drugs cannot be used in executions, and it has a list of products that it says must be used only “for medically necessary purposes.”

After divided Supreme Court allows Alabama execution, inmate heaves and coughs during lethal injection

Pfizer said that it did not supply its drug to the Arkansas Department of Correction but that McKesson, a distributor, had “sold the product” to the department “in direct violation of our policy.” In a statement, Pfizer also said it has twice asked Arkansas to return drugs that could be used for lethal injection, and while the company says it has weighed other avenues to get them back, “up to and including legal action,” the company said it concluded “it was highly unlikely” this would get the drugs back in time to prevent them from being used in an execution.

“We believe we have sought to appropriately enforce our policy and have fully explored everything within reason to seek the return of the product,” a Pfizer spokeswoman said in a statement Friday.

A spokesman for Rutledge, the state’s attorney general, declined to comment on whether she believed the drugs could be lawfully used and whether the state has been contacted about potential legal issue.

While Pfizer did not identify which of its drugs Arkansas has, McKesson said the state had obtained Pfizer’s vecuronium bromide. According to McKesson, Pfizer contacted the company to say its product tracking system flagged “a restricted product” that was delivered to the Arkansas Department of Corrections. The state obtained 10 boxes, each containing 10 vials, McKesson says.

McKesson said the Arkansas Department of Corrections “intentionally sought to circumvent McKesson’s policies” by claiming that the drug would only be used for medical reasons in a health facility.

After learning the drug could be used in a lethal injection, McKesson said it “requested and was assured by that the product would be returned.”

A full refund was issued to Arkansas last fall, a spokeswoman said, and though the company continued to request that the drug be returned, it had not been as of Friday. The company is seeking the drug back or a written assurance that its products would not be used for a lethal injection. McKesson had “not received a response from Arkansas Department of Correction and are currently reviewing our legal options,” Kristin Hunter, a spokeswoman, said in an email Friday.

The Department of Corrections declined to answer questions regarding how it obtained the drugs, whether the state received its refund and whether it planned to return the drugs.

Further reading:

Another execution gone awry. Now what?

How lethal injections have changed over the past decade

‘It was fundamentally unfair.’ A prosecutor apologizes for his role in putting an innocent man on death row