State-Level Confidentiality for Compounding Pharmacies Preparing Medications to Be Used in Lawful Executions

"Pfizer strongly objects to the use of its products as lethal injections for capital punishment." — Pfizer

Following in the footsteps of its subsidiary hospira inc, Pfizer is the latest, and largest, pharmaceutical company to take a stand against its products being used for lethal injection.¹

Lethal injection is a form of capital punishment that has been used in the United States (almost exclusively) since 1976—the year in which a 4-year ban on capital punishment was overturned by the Supreme Court. Currently, 31 states, the federal government, and the military have the legal authority to execute prisoners.² The archetypical practice is to successively administer sodium thiopental, pancuronium bromide, and potassium bromide to respectively anesthetize and paralyze before stopping the heart. Lethal injection was introduced as an alternative to what were considered less humane means of execution, such as the electric chair and the firing squad.

It is in the code of all health care workers, including pharmacists, to do no harm. Thus, the “medicalization” of capital punishment has not been without debate.³ With pharmaceutical companies limiting the supply of their drugs used for lethal injection, state governments have begun to use different protocols and different drugs, including a 3-drug regimen consisting of sodium thiopental, midazolam, and hydromorphone, as well as a 1-drug regimen with high doses of pentobarbital.⁴ The latter can be attributed to the decision in early 2011 by Hospira, Inc (the sole US manufacturer of sodium thiopental) to stop producing sodium thiopental due to concern that it would be distributed or redistributed to departments of correction for use in lethal injection.⁵

Some states have pursued importation of these drugs, with mixed results. In 2015, Arizona attempted to import sodium thiopental from India; however, when the shipment reached Phoenix International Airport, it was confiscated by federal authorities. The FDA controls the authorization of pharmaceuticals for distribution within the United States, as well as which manufacturers may produce these pharmaceuticals.⁶

With no domestic manufacturing of certain drugs from lethal injection and the limited ability to import these drugs internationally, some state governments have turned to compounding pharmacies. Although the International Academy of Compounding Pharmacists and the American Pharmacists Association have official stances discouraging their members from participating in legally authorized executions,^7,8 such participation has occurred. In these cases, whether the names of the compounding pharmacies should be made public has been hotly contested. Historically, all government sales contracts are public record and are viewable by the public. However, several states—Arizona, Georgia, Ohio, Missouri, Oklahoma, Arkansas, and, the latest, Virginia—have fashioned legislation that specifically shields the identities of providers of lethal injection drugs.⁹

Although Texas has similar legislation, it is currently engaged in a lawsuit with 3 attorneys who claim that because no “substantial threat of physical harm” exists, information regarding these compounding pharmacies cannot be withheld from the public. Texas Deputy Solicitor General Matthew Frederick states, “Pharmacies don’t have security details…. Their only protection is anonymity.” In 2013, Texas obtained pentobarbital from a compounding pharmacy. When the transaction was made public, the pharmacy received hate mail and messages, according to the pharmacy owner. The pharmacy subsequently discontinued the compounding and distribution of pentobarbital.¹⁰

This story will continue to unfold and evolve in the coming months and years. The pharmacist’s code of ethics reads, “A pharmacist serves individual, community, and societal needs.” Should compounding pharmacies provide drugs for lethal injection to state governments and the federal government? If they do, should the names of these pharmacies be made public? These are important questions that our profession will have to answer.

Carleton S. Ellis, a native of Louisa, Kentucky, is a third-year PharmD student at the University of Kentucky College of Pharmacy. Joseph L. Fink III, BSPharm, JD, is a professor of pharmacy law and policy and the Kentucky Pharmacists Association Endowed Professor of Leadership at the University of Kentucky College of Pharmacy, Lexington.

References

• Pfizer’s position on use of our products in lethal injections for capital punishment [press release]. New York, NY: Pfizer Inc; April 2016. pfizer.com/files/b2b/GlobalPolicyPaperLethalInjection.pdf. Accessed May 26, 2016.
• States and capital punishment. National Conference of State Legislatures website. ncsl.org/research/civil-and-criminal-justice/death-penalty.aspx. Published January 1, 2016. Accessed May 26, 2016.
• Romanelli F, Whisman T, Fink JL. Issues surrounding lethal injection as a means of capital punishment. Pharmacotherapy. 2008;28(12):1429-1436. doi: 10.1592/phco.28.12.1429.
• State by state lethal injection. Death Penalty Information Center website. deathpenaltyinfo.org/state-lethal-injection. Accessed May 28, 2016.
• Koppel N. Drug halt hinders executions in the US. Wall Street Journal website. wsj.com/articles/SB10001424052748704754304576095980790129692. Published January 22, 2011. Accessed May 27, 2016.
• Arizona tried to illegally import lethal injection drug not approved in the US. The Guardian website. theguardian.com/us-news/2015/oct/23/arizona-illegally-import-lethal-injection-drug. Published October 23, 2015. Accessed May 28, 2016.
• IACP adopts position on compounding of lethal injection drugs [press release]. Missouri City, TX: International Academy of Compounding Pharmacists; March 24, 2015. c.ymcdn.com/sites/www.iacprx.org/resource/resmgr/Media/Press_Release_Compounding_fo.pdf?hhSearchTerms=%22lethal+and+injection%22. Accessed May 26, 2016.
• APhA House of Delegates adopts policy discouraging pharmacist participation in execution [press release]. Washington, DC: American Pharmacists Association; March 30, 2015. pharmacist.com/apha-house-delegates-adopts-policy-discouraging-pharmacist-participation-execution. Accessed May 26, 2016.
• Lowery M. Another state shields identities of providers of lethal-injection drugs. Drug Topics website. drugtopics.modernmedicine.com/drug-topics/news/another-state-shields-identities-providers-lethal-injection-drugs?cfcache=true. Published April 22, 2016. Accessed May 28, 2016.
• Silver J. State, lawyers debate identifying execution drug supplier. The Texas Tribune website. texastribune.org/2016/05/11/state-lawyers-argue-over-identifying-execution-dru/. Published May 11, 2016. Accessed May 30, 2016.