The strategy has helped cut states off from many of the drugs they have used or sought to use for lethal injections, causing authorities to scramble to find new drug combinations or different execution methods. But it hasn’t entirely stopped states from getting the drugs they seek, so some companies have started testing a new tactic: Filing lawsuits aimed at keeping their drugs away from executions.
In three suits filed since last year, drug manufacturers and distributors have taken aim at states on the verge of carrying out executions, accusing them of using deceit to obtain the chemicals and demanding states return them. Experts say the drug companies are turning to the courts as a last resort.
“The companies have found that you have to up the ante because a threat is simply not enough,” said Deborah W. Denno, a law professor at Fordham University and a death penalty expert.
While the lawsuits have had mixed results, Denno said she expects more could follow as companies further try to distance themselves from capital punishment.
“The company’s goal is to not have their medicine used to kill prisoners,” said Robert Dunham, executive director of the Death Penalty Information Center, a Washington nonprofit. These firms worry about “the damage to their reputation that is caused by having medicines associated with death instead of life,” he said.
Supporters of capital punishment accuse the drug companies of forcing states to use inferior execution options and of using the court battles as a way to stop executions — or at least delay them just long enough for the drugs to expire.
The latest of these legal fights has unfolded in Nebraska, where state officials have been preparing to execute Carey Dean Moore, 60, who was sentenced to death for killing two Omaha cabdrivers in 1979. Moore’s execution, scheduled for Tuesday morning, would be Nebraska’s first-ever lethal injection and the country’s first execution using the powerful opioid fentanyl.
The drug company Fresenius Kabi filed a federal lawsuit last week seeking to block Nebraska from using what the company says it believes are two of its drugs to execute Moore. The company said it took no position on the death penalty but “opposes the use of its products for this purpose and therefore does not sell certain drugs to correctional facilities.” In court papers, the firm accused Nebraska of obtaining its drugs “through improper or illegal means” because of the restrictions it has in place.
Nebraska officials pushed back, arguing they bought their drugs lawfully and legitimately. They also argued they had no other way to obtain drugs. Scott R. Frakes, director of Nebraska’s Department of Correctional Services, wrote in an affidavit that he had contacted at least 40 suppliers and a half-dozen other states seeking drugs; only one supplier would provide them, and it will not sell more to the state, he said.
A federal judge ruled against the drug company Friday, and a three-judge panel of the U.S. Court of Appeals for the 8th Circuit affirmed that ruling on Monday. A spokesman for the company said it will not seek further appeals, likely clearing the way for Nebraska to carry out the execution. The office of Nebraska’s attorney general declined to comment on the appellate court’s decision.
That lawsuit came closely on the heels of another drug company’s suit that, at least temporarily, blocked Nevada from carrying out an execution using fentanyl. The state was hours away from executing Scott Dozier for murder last month, when a judge halted it because Alvogen, a pharmaceutical firm, accused the state of “illegitimately” acquiring its drug, the sedative midazolam.
The cases both have echoes of an effort last year by McKesson, the drug distributor, which went to court to stop Arkansas from using a drug the company said state officials had obtained under false pretenses. A state judge initially prohibited officials from using the drug, but Arkansas Attorney General Leslie Rutledge (R) successfully appealed to the Arkansas Supreme Court to have that order stayed. The state went on to carry out four executions in eight days.
“Pharmaceutical companies are trying to circumvent the rule of law by using eleventh-hour litigation tactics to stall these lawful executions,” Rutledge said in a statement last week. Rutledge and more than a dozen other attorneys general have opposed the drug companies’ lawsuits in Nebraska and Nevada, calling them “frivolous claims” and accusing the firms of “abusing the litigation process.”
“The Arkansas Supreme Court did not cave to the pressure from anti-death-penalty advocates,” Rutledge said. “I will continue to fight for justice and support my colleagues against these meritless arguments in states like Nevada and Nebraska, where drug companies have asked courts to halt lawful executions.”
In briefs filed in the Nebraska and Nevada cases, the attorneys general said “these lawsuits did not come out of nowhere” but are “the most recent battle” in what Supreme Court Justice Samuel A. Alito Jr. has described as “a guerrilla war against the death penalty.”
After Louisiana Attorney General Jeff Landry (R) joined the group of attorneys general weighing in on the Nevada case, he issued a statement saying the drug company “stood between victims’ families and justice” and added: “No family should be deprived of their hard-won justice and closure because of the hypocritical actions of this drug peddler.”
The legal fights come at an uncertain moment for capital punishment in the United States, where the practice remains on the books in 31 states but death sentences are carried out by far fewer.
Executions and death sentences alike have both plummeted in recent years. Lethal injection remains the main execution method nationwide, used in 289 out of the 292 executions carried out since 2010, according to records kept by the Death Penalty Information Center. (The others were two electrocutions in Virginia and one execution by firing squad in Utah; both states have lethal injection but allowed inmates to choose other options.)
“Lethal substances used in a lethal injection execution are difficult, if nearly impossible, to obtain,” Frakes said in an affidavit filed in federal court. “This problem is not limited solely to Nebraska, but exists in other death penalty states.”
Officials seeking drugs for executions also have turned to new, untested drug combinations. What used to be a largely uniform process nationwide — a three-drug protocol using an anesthetic, a paralytic and then a drug to stop the heart — has become something that varies from state to state.
Florida last year became the first state to use the anesthetic etomidate in an execution. Ohio, Arkansas, Alabama and Tennessee are among the states that have recently carried out executions using a combination of three drugs that includes midazolam, which is a common sedative but has become controversial for its use in unusually lengthy or bungled executions.
Nevada and Nebraska both announced plans to use fentanyl in lethal injections, scheduling the first executions involving the powerful synthetic opioid for this summer. Both ran headlong into drug companies asking courts to block the states from using their products and to hand them over, albeit with different results. Nevada’s execution remains on hold, and the case is ongoing, while Nebraska’s court fight appears to be over.
Richard G. Kopf, senior U.S. district judge, issued an order last week rejecting the drug company’s request in Nebraska. He pointed to the particularly tangled recent history of capital punishment in the state, noting that lawmakers abolished the death penalty in 2015 and then voters restored it the following year after it was added to the statewide ballot.
“The will of the people, as very currently understood, is plain,” he wrote.