European maker of pentobarbital no longer allows distribution to U.S. prisons
By Gary Grado
The Daily Record Newswire
PHOENIX, AZ — The U.S. Supreme Court recently refused to hear four Arizona capital cases, opening the door for a spate of executions in the coming months.
Now the question is: Which chemical will the state use to carry out the executions since the drug used in the last 11 executions, pentobarbital, is in short supply?
Based on the response to the pentobarbital shortage in other states, the Department of Corrections can either switch to a different drug or use a compound pharmacy to mix a batch of pentobarbital, said Dale Baich, who leads the capital habeas unit of the Federal Public Defender?s Office.
That’s the office that defends death-row inmates in federal court.
Outside of the prison system, compound pharmacies tailor drugs for individual patients, according to the FDA website. For example, a pharmacist could transform a drug that is sold only in pill form into a liquid for a child. The same principle applies for death row inmates, although not without controversy.
“There have been legal challenges in the states that have either selected compounding or selected other drugs,” Baich said.
Of course, Arizona hasn’t been immune to legal challenges pertaining to capital punishment in recent years.
Most recently, two inmates due for execution in October challenged the department’s attempt to keep the name of the drug manufacturer secret.
Judge Roslyn Silver of U.S. District Court ordered the department to reveal the drug maker and provide the expiration date of the drug.
The department revealed that the pentobarbital used to execute Edward Schad and Robert Jones expired in November 2013, raising the question of what to do after the expiration date.
Department spokesman Doug Nick declined to say what the department’s plans are for future executions.
“We’ll comply with the law,” Nick said.
The state has yet to ask the Arizona Supreme Court for a warrant of execution for any of the four inmates whose appeals have been exhausted: Pete Rogovich, Roger Scott, Joe Wood and Kevin Miles.
“Our attorneys are weighing options and determining timing,” said Stephanie Grisham, a spokeswoman for the state Attorney General’s Office.
States have gone in recent years to using an overdose of pentobarbital to execute prisoners, but the European maker of the drug, Lundbeck, began requiring buyers in 2011 to agree not to distribute it to U.S. prisons for executions.
And the European Union was able to stop Missouri in October from using propofal, one of the most-used anesthetics in the U.S., in an execution by threatening to limit imports of the drug if the execution was carried out.
Ohio recently switched to a combination of the sedative midazolam and painkiller hydromorphone. The state was prepared to execute its first prisoner that way on Nov. 14, but Gov. John Kasich stayed the execution of child-killer Ronald Phillips the day before, when the condemned man requested his kidney be donated to his ailing mother.
Baich said the problem with using a different drug than pentobarbital or combination of different drugs is that no one knows if the inmate will suffer.
Inmates in other states have alleged that midazalom will cause them severe pain while they die and leave them aware of their surroundings.
Arizona’s execution policy gives the director of the department sole discretion in picking which drug to use.
Last month, Texas conducted its first execution using pentobarbital mixed in a compound pharmacy.
The pharmacy owner, Jasper Lovoi, had second thoughts after he found himself in the middle of a firestorm of protesters, media calls and litigation.
Lovoi asked for the return of the drug, but Texas refused and executed Michael Yowell, a 43-year-old man convicted of killing his parents.
Critics of compounding pharmacies complain that while they are regulated by the states, the Food and Drug Administration has no oversight.
Using a compound pharmacy could prove complicated for Arizona, too.
According to a June 2012 Drug Enforcement Administration letter to the International Academy of Compounding, a compounding pharmacy can dispense a specially-made drug only to the ultimate user pursuant to a valid prescription or a member of the person’s household.
State statute also requires pharmacists to do their job in the patient’s best interests.
