How judges and drug companies stopped Arkansas’s execution spree

This week, the Arkansas Department of Corrections, poised to set the nation’s record for the most executions administered over a 10-day period, got caught.

With the supply of the first of the three required drugs in the lethal injection drugs cocktail about to expire, the state hastily lined up eight condemned men to face their sentence. But with the drugs prepped and the execution team at the ready, a judge called it off.

The reason for the stay: Arkansas officials lied to their drug supplier.

Arkansas is a state that has adopted secrecy laws to cover up the drugs it is using, how it obtains them, and the procedures it uses for executions. 

{mosads}According to Asa Hutchinson, governor of the state, “The reason for this is the source of the drug would dry up because of pressure that mounts from anti-death penalty advocates, boycotts, threats.”

Well, it now seems that it’s keeping secrets from the source of their supply as well.

McKesson, supplier of vercuronium bromide, the second drug used in the lethal injection protocol, has apparently been duped. The state purchased the drug with the provider’s understanding that it would be used for “medical purposes only.” Unless Arkansas officials have a very twisted definition for that phrase, they knowingly misled the supplier away from their real intended purpose, one on the opposite end of the spectrum from medical ones. Upon discovering the truth, the company petitioned the court for, and was granted, a restraining order, preventing its use.

Lethal injection drug supply has been the bane of executioner’s existence these past few years. While pharmaceutical companies had previously been unwitting partners in the execution trade, they have now effectively become the most powerful death penalty opponents in the country.

Last year’s 20 executions marked the lowest number of executions in the nation’s 40-year recent history of the punishment, beating the record low of 26 set just the previous year. It has been widely reported that the primary reason for this drastic decline has been states’ inability to obtain lethal injection drugs from suppliers.

The procurement problems over the last several years have surrounded the protocol’s first of the three drugs. Difficulties began in 2009 when Hospira, the sole manufacturer of the then-first drug, thiopental, announced that it would not resume sales in the U.S. due to its use in executions. 

The drug was quickly replaced with pentobarbital, but was just as rapidly rendered unavailable when its manufacturer, Lundbeck, restricted its distribution in 2011 to prevent departments of corrections from buying it. States next landed on midazolam, the current popular drug of choice, which has turned out to be a decision loaded with controversy.

“Like a hangman’s poorly tied noose or a malfunctioning electric chair, midazolam might render our latest method of execution too much for our conscience — and the Constitution — to bear.” Those were the words of Supreme Court Associate Justice Sonia Sotomayor in a February dissenting opinion of the court’s decision not to review the drug for Eighth Amendment violations. 

Several states had already barred its use over the problems experienced by others.

While the future use of midazolam is uncertain, it appears that states’ lethal injection struggles have just been compounded. Drug manufacturers are serious in not wanting to be a part of the process. 

As 9th Circuit Court of Appeals Judge Alex Kozinski points out, “Drug companies are in the business of healing, and they are not comfortable — either morally or just economically — being in the business of killing.”

Arkansas has been outed for violating this, despite its secrecy laws. Now the drug companies are aware of the at-any-cost depths states will stoop to in carrying out death sentences. It’s not like this wasn’t foreseeable. “What’s happening is all these things are being done in secret and they’re being done poorly, and they’re coming apart at the time of execution,” accurately observed Columbia Law School professor James Liebman in a 2015 interview.

If a state will callously violate a contract with a drug company for the sake of guaranteeing executions, what makes us think it won’t violate the rights of a condemned murderer?

In recent years our capital punishment focus has been diverted to issues surrounding drug availability and execution protocols. It’s time that we turn our attention and scrutiny to the behaviors of those charged with carrying out this ultimate punishment. 

Or better yet, to prevent all further mishandling, which is bound to happen again, let’s just end this outdated punishment once and for all.

Bianca Clark is the director of Prison Lives, a 501(C)(3) non-profit organization established to educate and enable prisoners to be productive individuals while incarcerated for a positive existence both inside and outside of prison life.

The views expressed by contributors are their own and are not the views of The Hill.