In recent years, the supply chain for drugs used for lethal injections has dried up because several European suppliers have severely limited their sale in the States. The near-unanimous sentiment in the EU is that the death penalty is inherently inhumane, and the potential backlash is so severe that many European pharmaceutical companies are unwilling to send these drugs to American customers for any reason because there's no way to ensure that they ultimately won't end up in the hands of correctional agencies. Under the circumstances, several states are turning to compounding pharmacies to get the drugs needed for the cocktail used in lethal injections. That's touched off a host of legal battles, mainly due to concerns that the pharmacies are poorly regulated.
Cut off from traditional sources of drugs, at least five states where the death penalty is legal - South Dakota, Texas, Ohio, Georgia and Colorado - are looking to "compounding" pharmacies, which typically mix drugs for prescriptions and are mostly exempt from federal oversight and face widely varying scrutiny from states.
Tainted drugs from a Massachusetts compounding pharmacy caused an outbreak last year of a rare type of meningitis that killed more than 50 people and sickened more than 700 in 20 states, according to the U.S. Centers for Disease Control and Prevention. The resulting outcry has sparked a drive in Congress for a larger role by the U.S. Food and Drug Administration, which has warned of "special risks" from compounding pharmacies.
No judge appears to have ruled that an execution was botched from compounded drugs. But death penalty opponents have filed a flurry of lawsuits seeking to halt executions using them.
They say the use of compounded drugs runs the risk of violating the 14th Amendment to the U.S. Constitution, which forbids states from inflicting "cruel and unusual punishment."
The main argument from death penalty opponents is that since compounding pharmacies aren't well regulated, there's not enough assurance that the drugs are potent. Indeed, the FDA has found that compounded drugs can sometimes be less potent than how they're lested on the label--and it's led to several cases of contamination. The most famous case of contamination, of course, was the massive meningitis outbreak caused by improperly compounded drugs from the New England Compounding Center.
At least one judge has bought this argument. In Georgia, a judge stayed the execution of Warren Lee Hill due to concerns about the quality of the drugs the state wanted to use to execute him.
A related issue is monitoring the process by which the drugs are made. Some states are trying to shield that process from scrutiny--but so far, those efforts have been largely unsuccessful. For instance, Texas revealed two weeks ago that it obtained the drug phenobarbital--another part of the lethal injection cocktail--from Woodands Compounding Pharmacy in Houston. The criticism came so fast and furious that two days later, owner Jasper Lovoi demanded the drugs be returned. In a letter to the state corrections department that was obtained as part of a federal lawsuit by three Texas death row inmates, Lovoi claimed that he'd been assured no one would find out he was the supplier.
You would think that states would be skittish about turning to compounders so soon after the NECC imbroglio. Dare I say that they're getting desperate in light of growing national and international sentiment against the death penalty?