Drug Halt Hinders Executions in the U.S.

Deborah Denno in The Wall Street Journal, January 22, 2011

Media Source

By Nathan Koppel

The sole U.S. maker of a key drug used in lethal injections halted its production amid a broad global campaign by opponents of the death penalty, a decision likely to cause a substantial delay in many executions across the country.

The move by Hospira Inc. came after months of pressure by activists through a new campaign aimed at pressuring pharmaceutical companies whose products are used in lethal injections. The final decision came in the face of opposition from government figures in Italy, whose constitution prohibits the death penalty, after Hospira announced plans to shift production of the drug to a plant in Italy.

"We worried that if a drug made in Italy ended up in a lethal injection, it would put our facility and our employees at risk of liability," said Thomas Moore, president, U.S. region, of the Lake Forest, Ill., company.

The drug, sodium thiopental, is an anesthetic typically used to render a condemned inmate unconscious before other lethal drugs, including a paralytic agent, are administered. Lethal injection is the sole or primary execution method in the 35 states that carry out the death penalty.

Originally designed for a wide range of uses, including surgeries, sodium thiopental had become more associated with the executions as other anesthetics supplanted it.

Hospira has tried to distance itself from that association, even telling prison officials it opposed its use in the procedures.

Now that it has halted production altogether, experts said, states have few immediate alternatives. There are 3,261 inmates on death row in the U.S., according to the NAACP Legal Defense and Educational Fund.

"There is no quick fix in place for departments of corrections," said Deborah Denno, a death-penalty expert at Fordham University Law School in New York. "There will be more delays in the death penalty after such a major [drug] provider has backed out of the market."

A number of states, including Arizona, California, Kentucky and Tennessee, already had been struggling with a shortage of supply in sodium thiopental after Hospira halted production in 2009 because of manufacturing issues in a North Carolina plant. Until Friday, the company had planned to resume production early this year at a company plant in Liscate, Italy.

Texas, which leads the nation in executions, has enough sodium thiopental to cover two scheduled executions in February, according to Michelle Lyons, a spokeswoman for the Texas Department of Criminal Justice. But it will have to obtain an additional supply to carry out a lethal injection scheduled for May, she said.

Kent Cattani, an attorney with the Arizona Attorney General's Office, said the legal wrangling and publicity surrounding the sodium thiopental shortage have led to delays in a death-penalty process already burdened with problems. Arizona has obtained two shipments from the U.K. and likely has a sufficient supply to carry it through 2014, he said, but added that states could have to turn to other drugs or "other viable alternatives, like a firing squad."

Prison officials now will have no choice but to find overseas suppliers of sodium thiopental. But a growing number of lawyers, judges, and government officials on both sides of the Atlantic have already started to question whether it is legal to ship the drug from overseas.

Some states might also decide to use a substitute anesthetic but that would almost surely require court or legislative approval, according to legal experts. Late last year, a drug used to euthanize animals was approved for executions in Oklahoma, but the state was engaged in court battles for months.

Some officials were hesitant to predict what the impact would be of Hospira's decision. "We will look at things and take the necessary time to review our options," said Dorinda Carter, a spokeswoman for the Tennessee Department of Corrections.

Lethal injection has been used in most of the 1,237 executions that have occurred in the United States since the Supreme Court allowed executions to resume in 1976 after a suspension.

Thiopental is little more than a revenue rounding error for Hospira, which spun off from Abbott Labs in 2004 and is the world's largest manufacturer of generic injectable drugs. In 2009, thiopental generated about $6 million in U.S. sales, less than 0.25% of Hospira's total drugs sales that year, said a Hospira spokeswoman.

The thiopental shortage has prompted unprecedented scrutiny of the companies that make and distribute execution drugs. Court filings, for example, have revealed the names of thiopental makers and suppliers in Europe that distributed thiopental to prisons in Arizona and California, disclosures that have touched off protests by human rights advocates in Europe.

In November, a U.K. nonprofit called Reprieve, which lobbies against the death penalty, filed a lawsuit in London challenging overseas thiopental shipments. Shortly after the U.K. announced plans to ban thiopental exports to prisons to underscore its "moral opposition to the death penalty."

The European Commission is considering a European Union-wide ban on the export of execution drugs, according to London lawyers.

Executions in many states could be delayed after the lone maker of a key drug used in lethal injections has decided to permanently halt its production. WSJ's Nathan Koppel has the latest in an interview with Simon Constable.
Clive Stafford Smith, the head of Reprieve, also sent a letter to Sandoz, a unit of Novartis AG, saying that it appeared Sandoz-manufactured thiopental had been sent to U.S. prisons.

Jeff George, the head of Sandoz, said in an interview that he was unaware of the issue, and "ticked off" to hear about it. Sandoz makes thiopental because it is an important anesthetic, and a treatment for certain kinds of epilepsy, he said. "Capital punishment certainly is not an approved indication for this product," he said. Mr. George said Sandoz does not sell the drug directly to U.S. buyers and has asked its subsidiaries not to sell the drug to third parties who might, in turn, distribute it to the U.S.

Despite its recent notoriety, thiopental has been used as a surgical anesthetic for more than 70 years.

It has been largely supplanted in recent years by a newer, more effective anesthetics, doctors said.

It steadily grew in prominence in the criminal-justice world, however, since the late 1970s when Oklahoma became the first state to decide to use it for executions.

Death-penalty opponents, Mr. Smith said, now have a powerful new weapon in their quiver: identifying and pressuring pharmaceutical companies that supply execution drugs to prisons.

"I've yet to find any pharmaceutical company that says their corporate ethos is to go around and kill people," he said. "I've been doing [death-penalty] work for 26 years," he added. "I can't believe it just occurred to me to target drug companies."