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Pfizer Bars Use Of Its Drugs In Capital Punishment

Death Chamber

In the latest sign of an what seems like a cultural shift on the issue of capital punishment, Pfizer announced yesterday that it would no longer permit its drugs to be used as part of the lethal injection “cocktail” that most states that still have the death penalty and use it:

The pharmaceutical giant Pfizer announced on Friday that it had imposed sweeping controls on the distribution of its products to ensure that none are used in lethal injections, a step that closes off the last remaining open-market source of drugs used in executions.

More than 20 American and European drug companies have already adopted such restrictions, citing either moral or business reasons. Nonetheless, the decision from one of the world’s leading pharmaceutical manufacturers is seen as a milestone.

“With Pfizer’s announcement, all F.D.A.-approved manufacturers of any potential execution drug have now blocked their sale for this purpose,” said Maya Foa, who tracks drug companies for Reprieve, a London-based human rights advocacy group. “Executing states must now go underground if they want to get hold of medicines for use in lethal injection.”

The obstacles to lethal injection have grown in the last five years as manufacturers, seeking to avoid association with executions, have barred the sale of their products to corrections agencies. Experiments with new drugs, a series of botched executions and covert efforts to obtain lethal chemicals have mired many states in court challenges.

The mounting difficulty in obtaining lethal drugs has already caused states to furtively scramble for supplies.

Some states have used straw buyers or tried to import drugs from abroad that are not approved by the Food and Drug Administration, only to see them seized by federal agents. Some have covertly bought supplies from loosely regulated compounding pharmacies while others, including Arizona, Oklahoma and Ohio, have delayed executions for months or longer because of drug shortages or legal issues tied to injection procedures.

A few states have adopted the electric chair, firing squad or gas chamber as an alternative if lethal drugs are not available. Since Utah chooses to have a death penalty, “we have to have a means of carrying it out,” said State Representative Paul Ray as he argued last year for authorization of the firing squad.

Lawyers for condemned inmates have challenged the efforts of corrections officials to conceal how the drugs are obtained, saying this makes it impossible to know if they meet quality standards or might cause undue suffering.

“States are shrouding in secrecy aspects of what should be the most transparent government activity,” said Ty Alper, associate director of the death penalty clinic at the University of California, Berkeley, School of Law.

Before Missouri put a prisoner to death on Wednesday, for example, it refused to say in court whether the lethal barbiturate it used, pentobarbital, was produced by a compounding pharmacy or a licensed manufacturer. Akorn, the only approved company making that drug, has tried to prevent its use in executions.

Pfizer’s decision follows its acquisition last year of Hospira, a company that has made seven drugs used in executions including barbiturates, sedatives and agents that can cause paralysis or heart failure. Hospira had long tried to prevent diversion of its products to state prisons but had not succeeded; its products were used in a prolonged, apparently agonizing execution in Ohio in 2014, and are stockpiled by Arkansas, according to documents obtained by reporters.

Because these drugs are also distributed for normal medical use, there is no way to determine what share of the agents used in recent executions were produced by Hospira, or more recently, Pfizer.

Campaigns against the death penalty, and Europe’s strong prohibitions on the export of execution drugs, have raised the stakes for pharmaceutical companies. But many, including Pfizer, say medical principles and business concerns have guided their policies.

“Pfizer makes its products to enhance and save the lives of the patients we serve,” the company said in Friday’s statement, and “strongly objects to the use of its products as lethal injections for capital punishment.”

Pfizer said it would restrict the sale to selected wholesalers of seven products that could be used in executions. The distributors must certify that they will not resell the drugs to corrections departments and will be closely monitored.

David B. Muhlhausen, an expert on criminal justice at the Heritage Foundation, accused Pfizer and other drug companies of “caving in to special interest groups.” He said that while the companies have a right to choose how their products are used, their efforts to curb sales for executions “are not actually in the public interest” because research shows, he believes, that the death penalty has a deterrent effect on crime.

Pfizer’s decision is only the latest development in a series of events that have made it more difficult for states to execute prisoners via lethal injection:

Less than a decade ago, lethal injection was generally portrayed as a simple, humane way to put condemned prisoners to death. Virtually all executions used the same three-drug combination: sodium thiopental, a barbiturate, to render the inmate unconscious, followed by a paralytic and a heart-stopping drug.

In 2009, technical production problems, not the efforts of death-penalty opponents, forced the only federally approved factory that made sodium thiopental to close. That, plus more stringent export controls in Europe, set off a cascade of events that have bedeviled state corrections agencies ever since.

Many states have experimented with new drug combinations, sometimes with disastrous results, such as the prolonged execution of Joseph R. Wood III in Arizona in 2014, using the sedative midazolam. The state’s executions are delayed as court challenges continue.

Under a new glaring spotlight, deficiencies in execution procedures and medical management have also been exposed. After winning a Supreme Court case last year for the right to execute Richard E. Glossip and others using midazolam, Oklahoma had to impose a stay only hours before Mr. Glossip’s scheduled execution in September. Officials discovered they had obtained the wrong drug, and imposed a moratorium as a grand jury conducts an investigation.

A majority of the 32 states with the death penalty have imposed secrecy around their drug sources, saying that suppliers would face severe reprisals or even violence from death penalty opponents. In a court hearing this week, a Texas official argued that disclosing the identity of its pentobarbital source “creates a substantial threat of physical harm.”

But others, noting the evidence that states are making covert drug purchases, see a different motive. “The secrecy is not designed to protect the manufacturers, it is designed to keep the manufacturers in the dark about misuse of their products,” said Robert Dunham, executive director of the Death Penalty Information Center, a research group in Washington.

In essence, what we have hear is a sign of the free market in action. As the years have passed companies like Pfizer have found that the negative publicity that they receive for being involved with increasingly controversial executions in the United States simply isn’t worth whatever revenue might have been received for sales for this purpose. This is a reflection of a trend that appears to show at least some slippage in support for capital punishment as a sentencing alternative. While a majority of Americans still support capital punishment in the abstract, recent polling has also shown that, when presented with the alternative of a life sentence without the possibility of parole or the death penalty, a majority of Americans support life in prison. Just last year, Nebraska, a relatively conservative state controlled by Republicans, became the latest state to abolish the death penalty. One of the reasons why attitudes may be changing on this issue, of course, is the rash of cases over the past decade or more revealing that people who have been in prison for a long period of time were in fact innocent of the charges against them. The more common these cases become, the more apparent it becomes that, even with all of the procedural protections in the world, the possibility exists that someone who is innocent could end up being executed. Indeed, that appears to be exactly what happened in the case of Cameron Todd Willingham, a Texas father convicted and executed in the arson deaths of his three children who, subsequent investigations have revealed, was most likely innocent of the charges against him and harmed significantly by the inability of his court-appointed counsel to present the kind of expert testimony the state used due to the fact that Willingham could not afford such experts and the State of Texas refused to pay for them. Stories such as this have brought significant doubt to the certainly once allegedly provided by the death penalty.

At least in the short term, Pfizer’s decision is likely to make it more difficult for states to carry out executions and may slow down the pace of executions to an even greater degree than we’ve already seen. At the very least, states will have to find some new source(s) for their drug cocktail, or change the nature of the cocktail based on what’s available for sale. This is likely to lead to further litigation on the part of counsel for death row inmates who will seek to obtain as much information as possible about the substances being used for execution. Other states may join those who have changed their laws to authorize other methods of execution, returning to means that were largely abandoned in the 1980s and 1990s when it was determined that lethal injection was a more humane method of execution. If the shortages continue, though, and it becomes more expensive for states to carry out this task. Perhaps that’s what it will take to finally bring this practice to an end.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Hal_10000 says:

    Proud to own stock in this company today. The death penalty is one place where I’ve changed my opinion. But I changed it for conservative reasons. I have little sympathy for murderers. I just have learned that we can’t trust any government with the power of life and death.

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  2. Davebo says:

    I always suspected Phizer’s drugs could kill you!

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  3. Pch101 says:

    I’m opposed to the death penalty generally, but I am also opposed to the concept of a product producer being allowed to impose restraints on the legal behavior of its distributors’ or retailers’ customers just because the company feels like it.

    Imagine if an automaker prohibited its dealers from selling cars to doctors who perform abortions because the automaker’s board of directors is stacked with pro-lifers and doesn’t want to facilitate those doctors’ abilities to travel to abortion clinics. I can’t imagine too many pro-choicers would see any merit in that kind of overreach.

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  4. Jenos Idanian says:

    In essence, what we have hear is a sign of the free market in action.

    Bullshit. What we have here is a group of people who don’t like the death penalty, but can’t (or can’t be bothered) to change the law, so they find a way to circumvent it. Pfizer isn’t responding to market forces, it’s responding to people using the threat of bad PR to advance a goal they can’t achieve through legitimate means.

    Even though it is against my beliefs, we have a precedent here we can use. Treat Pfizer like a wedding cake baker — they have no right to refuse service to customers because they don’t like the customer’s morality.

    Alternately, tell them that they get to choose — they can sell the government whatever the government asks for, or they can stop selling to the government entirely. And that includes indirect sales, too — Pfizer gets blackballed from Medicare, Medicaid, VA hospitals, everything.

    They chose to side with political activists and take a stance. Let them fully enjoy the benefits of that choice.

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  5. MarkedMan says:

    @Pch101: while I agree in the abstract that normally companies should not be able to dictate what someone does with their product, drugs are regulated differently than other pretty things. A manufacturer can only sells drugs for their indicated use. However, it is normal practice that doctors can choose to use the drugs off label, thereby assuming the risk. Still, the courts have ruled that this doesn’t totally absolve the manufacturer of responsibility, so they have the obligation to not knowingly sell to someone who will use the drug in a dangerous way. And the whole point of lethal injection is, well, death.

    I’m not saying this is cut and dried but rather that drugs are unlike other projects.

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  6. Just 'nutha ig'rant cracker says:

    @Jenos Idanian: I’m sorry, but the threat of bad PR counts as a market force because if enough people decline to buy Zoloft, or maybe more to the point Advil, simply because they don’t want to use drugs from a company that executes people, the bottom line drops. The fact that you don’t like the variety of market force does not stop it from existing.

    But thanks for playing. Please take your lovely parting gift on the way out.

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  7. Paul Hooson says:

    On moral grounds this is a very good decision. The state has made mistakes wrongfully convicting many persons before and will only continue to do so in the future. Even in the cases of those who are guilty of serious crimes, they present no danger to the public at large while in prison.

    The state simply cannot restore life to someone who is wrongfully executed if they are later cleared by a court.

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  8. Jenos Idanian says:

    @Paul Hooson: On moral grounds this is a very good decision.

    Then get off your ass and change the law.

    What the hell is it about progressives that, when they don’t like a law, they can’t be bothered to actually change the law?

    And where were all these arguments about “let the market decide” when it was about gay marriage and bakers and photographers? Why not just tell everyone “Joe’s Pizza won’t cater gay weddings,” and let people vote against Joe’s Pizza with their wallets?

    It amazes me how people who claim to be the champions of democracy do everything they can to take away people’s rights to make their own choices, who talk about the law but do everything they can to undercut the laws that they don’t like.

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  9. Hal_10000 says:

    @Pch101:

    Imagine if an automaker prohibited its dealers from selling cars to doctors who perform abortions because the automaker’s board of directors is stacked with pro-lifers and doesn’t want to facilitate those doctors’ abilities to travel to abortion clinics. I can’t imagine too many pro-choicers would see any merit in that kind of overreach.

    Abortion doctors don’t run over fetuses with their cars. The drug in this question is one that is directly involved in execution. This would be more analogous to boeing deciding to stop making warplanes because of a moral opposition to war. I don’t really have a problem with a company making that kind of moral choice. If the stockholders don’t like it, they can vote out the board.

    Pfizer isn’t responding to market forces, it’s responding to people using the threat of bad PR to advance a goal they can’t achieve through legitimate means.

    Bad PR *is* a market force. In fact, it’s precisely the market force conservatives/libertarians lean on when they oppose over-regulation: that public pressure and attention will get companies to engage in better environmental practices or better labor practices. I might oppose someone’s attempt to pressure a company into doing what they want; but it’s part of the social fabric of the free market.

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  10. MarkedMan says:

    @MarkedMan: ignore the “pretty” in my comment above. And substitute products for projects. And avoid texting in the back of a car on abumpy road

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  11. Pch101 says:

    @Hal_10000:

    Using a car to run over people is illegal; capital punishment is legal. So that’s a poor analogy.

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  12. Pch101 says:

    @MarkedMan:

    A manufacturer can only sells drugs for their indicated use.

    Has the FDA determined that these drugs can’t be used for capital punishment?

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  13. MarkedMan says:

    @Pch101:

    Has the FDA determined that these drugs can’t be used for capital punishment?

    (Caveat: I’m in medical devices, not drugs, but the principles are the same.) You go to the FDA for clearance for certain indications for use and those are all you, as a manufacturer are allowed. From time to time you’ll hear of some major FDA action because a manufacturer is promoting off label use. That can come from something as simple as sales reps commenting that Doctor so-and-so thinks this is great when used for this other condition. Doesn’t matter if the Doc said that or not, your rep can’t promote it, although they could refer to a published, peer reviewed journal paper if specifically asked about it. But even then they can’t express an opinion.

    The key is that you have proven that the drug or device is safe and effective (USA) or just safe (Europe) for those indications but have not done so for others. And no drug could ever be shown safe for capital punishment because the starting definition for “safe” is that it does less harm than doing nothing.

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  14. Pch101 says:

    @MarkedMan:

    Ultimately, the acceptable uses for meds are determined by the government. If the government has no objection to using the drugs for capital punishment, then I’m not seeing the issue here.

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  15. Gustopher says:

    @Jenos Idanian: Bakeries offer services to the general public, and gays are a protected class as the equal protection clause is currently interpreted. Similarly, gay florists could not refuse to provide services for True Christian weddings.

    Drug manufacturers do not offer services to the general public — at least not these drugs — and state prisons are not a protected class.

    Nice try, I guess.

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  16. Gustopher says:

    @Jenos Idanian: Had the civil rights movement not been about systemic denial of services, we might have had case law that defended the rights of bigots more. But, that’s not what happened, and you can blame the South for that.

    It is reasonable to say that if 80% of venders in an area (drawn small enough to not greatly inconvenience customers) will provide services, than the bigoted owners of an establishment would be able to advertise their bigotry and deny service based upon their bigotry. Bigots are people too, and we need to balance the rights of bigots against the rights of society as a whole.

    Treating shops as a public accommodation is, in effect, a government taking. It affects the bigoted shopkeeper’s rights of association. In the end, all interesting court cases are about balancing two conflicting rights, and deciding which rights take precedence.

    Had “separate but equal” actually involved things being equal, it probably would have been able to stand. So the bigots of today were poorly served by their bigot forefathers.

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  17. An Interested Party says:

    Then get off your ass and change the law.

    Very sound advice for those in Congress who oppose ACA but would rather file quixotic lawsuits instead…

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  18. Rafer Janders says:

    @Jenos Idanian:

    Pfizer isn’t responding to market forces, it’s responding to people using the threat of bad PR to advance a goal they can’t achieve through legitimate means.

    That IS a market force, you moron.

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  19. Jenos Idanian says:

    @Gustopher: The biggest attention-grabbing case involved a pizza place that declined to cater a hypothetical gay wedding.

    The key words there were “pizza,” “wedding” and “hypothetical.”

    And if Pfizer wants to turn away government business, then they should give up all government business. By choice or not.

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  20. Franklin says:

    @Jenos Idanian:

    What the hell is it about progressives that, when they don’t like a law, they can’t be bothered to actually change the law?

    Kettle/pot. Like the conservatives trying to obtain the lethal drugs in an illegal manner? Why don’t the conservatives change the laws that they don’t like? (It’s actually much much worse in their case – at least the liberals have found a legal way around.)

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  21. frogger says:

    Entirely aside from the free-market debate here, I thought nitrogen asphyxiation had already been proven to be a more humane method of execution with easier to obtain materials. Why are states scrambling to find supplies via the black or grey market when there are legitimate alternatives?

    Also I wonder if suicide should be an option for inmates sentenced to life without parole, as that prison sentence is essentially the same as a very slow death penalty.

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  22. MarkedMan says:

    @Pch101: @Pch101:

    Ultimately, the acceptable uses for meds are determined by the government

    That’s not really how it works. Manufacturers make claims and the FDA examines the evidence provided by them to see if it meets the safe and effective standard (among other things it looks for). The FDA would never approve a drug for something the manufacturer didn’t claim in their request for pre-market clearance. No manufacturer could ask for such clearance for the purpose of killing a patient – by definition it is not safe.

    So the only argument is ” can a manufacturer refuse to sell a drug to a doctor when it knows the doctor is a) using it off label and b) it knows such use will harm the patient.”

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  23. Matt says:

    @frogger: Last I knew only one state was looking at using nitrogen for executions. Nitrogen (like helium and a few other gases) is quite effective for killing people. Since the atmosphere contains high levels of nitrogen naturally there is no bodily response like when you suffocate on CO2. There are spasms as there are in any form of death.

    Having said that I’m against capital punishment except for extreme circumstances where guilt has no doubt such as with Timothy McVeigh types.

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  24. Gustopher says:

    @Matt: Perhaps I am a monster, but I kind of like the idea of executing people by helium. The comedic high squeaking voice, and the terrifying gravity of the situation would combine together to show what a mockery of justice capital punishment really is.

    Obviously this would have to be a public execution.

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  25. Pch101 says:

    @MarkedMan:

    The reason that those limitations exist is because of government regulations. The FDA requires pharma companies to prove that their drugs are safe and effective in treating the conditions that the drug maker claims that they can treat.

    Obviously, the drug’s safety and effectiveness in curing or containing a health condition are not relevant when the goal is to kill the recipient.

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  26. Tony W says:

    @Gustopher: While I don’t agree on the helium bit because I’m no sadist, I absolutely agree with a public execution policy. Let’s use what we learned from the draft in Vietnam.

    My proposal: as part of your broadcast license, executions shall be required to be broadcast live on national television and will be scheduled during the hours of 6-9 PM. Conservatives” (Hal10000 notwithstanding) apparently trust the government in only a narrow area – to effectively kill our convicted criminals, so let’s just admit what we stand for and put it out there so that everyone can see exactly what we are all about.

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  27. Pch101 says:

    @Tony W:

    Public executions used to serve as entertainment. I suspect that your idea would backfire; it would just raise the level of bloodlust.

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  28. bill says:

    carbon monoxide is very effective and cheap- the latter is probably why they won’t use it.
    but heck, how many people od of rx drugs daily? and they’re worried about people who actually did something worse and deserve it?!

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  29. al-Ameda says:

    @Jenos Idanian:

    Bullshit. What we have here is a group of people who don’t like the death penalty, but can’t (or can’t be bothered) to change the law, so they find a way to circumvent it. Pfizer isn’t responding to market forces, it’s responding to people using the threat of bad PR to advance a goal they can’t achieve through legitimate means.

    Wow, you don’t consider the public at large – ultimately the consumers of Pfizer pharmaceutical products – to be a market force?

    If I’m an executive in corporate communication at Pfizer, I’m very pleased that my company is out of the business of having to explain to the public and to shareholders how and why Pfizer products are used in the death penalty process.

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  30. KM says:

    @Jenos Idanian:

    What the hell is it about progressives that, when they don’t like a law, they can’t be bothered to actually change the law?

    Flip the script: Why the hell haven’t conservative in pro-DP states made it illegal for drug companies to deny selling them something necessary for a court-ordered function?

    Answer – the business lobby would tear them a new one and cons who’ve read the Constitution (not just the one in their head) would justifiably flip out about massive government overreach. The government do not have the same rights as citizens so if a company tells Uncle Sam to walk on, they are well within their rights. There’s no way anyone would put up with a heavy-handed government forcing a company sell them something used to kill its own (potentially innocent) citizens. So yes, negative public approval/sentiment is a completely legitimate market force no matter how you look at this.

    This is not just a moral stand but a sound business one as well. It protects the company, promote it in the eyes of the public and potentially drives up sales across the board with minimal income loss in a niche area. This is a slam dunk decision for any company without even touching the ethics of DP. Pfizer did what good for Pfizer; Texas and company are on their own….

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  31. Matt says:

    @Gustopher: I only suggested nitrogen because helium is limited in supplies.

    I uhhh never took the thought to the level that you did.

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