Pharmaceutical giant Pfizer made big news last week when it announced a ban on the use of its drugs to carry out the death penalty by lethal injection. “Sweeping controls on the distribution of its products” have clamped shut “the last remaining open-market source of drugs used in executions,” the New York Times reported, calling it a milestone in the fight against capital punishment. Somewhat buried in the flurry of headlines that followed was the fact that Pfizer has never been known to supply states with execution drugs. It is only after the company acquired a different drug company last year — Hospira Inc., which produced several drugs states have used or intend to use in executions — that Pfizer put such restrictions in place. This doesn’t make its policy any less important: “Pfizer has closed the circle,” said Arizona federal public defender Dale Baich, who litigates lethal injection challenges across the country. “The states can no longer obtain drugs from legitimate and legal sources.” But as Baich and others know too well, many states stopped seeking drugs from legitimate sources a long time ago. Today, most active death penalty states rely on anonymous compounding pharmacies, whose loose regulations vary wildly from state to state, making them dangerously unreliable compared to FDA approved drug companies when it comes to the efficacy of their products. Other states have broken federal law by importing illicit drugs from overseas. In driving states to the underground market, Pfizer’s announcement merely makes official what has already been happening for years. Take Texas, which has carried out six executions so far this year and has eight more scheduled through the fall. There, prison officials were decidedly unfazed by the news. “It’s not anticipated that Pfizer’s decision will have an impact on the agency’s current ability to carry out executions,” Texas Department of Criminal Justice spokesperson Jason Clark wrote in an email to The Intercept. So where does Texas get its drugs if not through companies like Pfizer? Today, we’re not allowed to know the answer to that question. “State law prevents the disclosure of the identity of the supplier of execution drugs,” Clark wrote, saying only that they come from a “licensed pharmacy that has the ability to compound.” The official rationale for the policy — which became effective last September — is that secrecy is the only guarantee of safety for those companies still willing to supply drugs for executions. “Pharmacies don’t have security details,” Deputy Texas Solicitor General Matthew Frederick told an appellate court earlier this month, opposing a legal challenge to the law. “Their only protection is anonymity. Once you take that away … there’s nothing they can do to protect themselves.” The problem with such ominous rhetoric is that there is virtually no evidence to back it up. For years, suppliers of lethal injection drugs in Texas could be identified via open records requests, without incident. But in the fall of 2013, a local company, Woodlands Compounding Pharmacy, was revealed to have provided pentobarbital for executions, prompting the owner to complain about “hate mail” and unwanted media attention — and to ask for its drugs back. Some months later, the Texas Department of Public Safety released a threat assessment, warning that pharmacies like Woodlands are a “soft target for violent attacks” and that “publicly linking a pharmacy or other drug supplier to the production of controlled substances to be used in executions presents a substantial threat of physical harm … and should be avoided to the greatest extent possible.” As the Texas Observer reported, the only evidence for such threats offered by Texas officials included a strongly worded letter to Woodlands and a random blog post featuring an image of an exploding head. Today, lethal injection secrecy statutes exist in some dozen states and counting, under the same pretense of security. “The states have never offered any proof that a manufacturer has been harassed,” said Baich. Yet the claim has become entrenched. In Mississippi, Attorney General Jim Hood recently praised lawmakers for passing a secrecy bill drafted by his office, stressing the need for drug suppliers to “be free from the intimidation and strong-arm tactics of some anti-death penalty activists.” For years, lawyers and journalists have argued that the real purpose of such laws is to block scrutiny of states’ execution protocols. In effect, they have also “prevented manufacturers from learning how states have gotten a hold of the pharmaceutical products they have been using in executions,” said Robert Dunham of the Death Penalty Information Center. Pfizer’s tight new restrictions, Dunham said, are “designed to counter” such secrecy. With Pfizer’s announcement last week, the most significant challenge will not be overcoming state secrecy to ensure that major drug corporations can keep such promises. The bigger problem is how to hold states accountable to the Constitution as they do business with faceless companies that have no ethical qualms about selling execution drugs. “As compounding pharmacies do this in the dark,” said Maya Foa of the human rights group Reprieve, which has led the effort to convince the pharmaceutical industry to block its drugs for use in executions, “it is just going to a create more of a mess — potentially, more botched executions.”

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Agonizing Deaths The image of abolitionist bullies threatening drug suppliers — or as Supreme Court Justice Samuel Alito put it last year, waging “guerrilla warfare against the death penalty” — is a relatively new invention. Its origin can be traced back to the drug shortages that first set the stage for the current upheaval around lethal injection — and which inspired perhaps the country’s most far-reaching lethal injection secrecy law, in Georgia. In August 2009, Hospira Inc. ceased production of the anesthetic sodium thiopental (a key ingredient in what was then the standard three-drug protocol in use across the country), after one of its suppliers stopped making a crucial ingredient. At first, Hospira planned to move its production to Italy, but after Reprieve successfully pressured the Italian government to block the export of such drugs for the use of U.S. executions, the company stopped manufacturing the drug altogether. With their go-to supplier of sodium thiopental no longer an option, death penalty states started seeking other sources — and before long, some disturbing consequences emerged. In 2010, just days after the Arizona Republic revealed that local prison officials had imported sodium thiopental from overseas, Dale Baich witnessed the death of a client named Jeffrey Landrigan, whose execution appeared to go awry. While it was not the dramatic two-hour ordeal later suffered by a different client, Joseph Wood, in 2015, Landrigan’s death was alarming for one lurid detail: He died with his eyes open. Baich would later learn that the sodium thiopental used to kill Landrigan had almost certainly expired. This meant that he was not properly anesthetized when the second drug, a paralytic, kicked in. The inescapable conclusion: Landrigan was conscious and frozen in place as the third drug, potassium chloride, seeped into his veins and stopped his heart — an “agonizing” way to die, according to one anesthesiologist. The same batch of sodium thiopental used to kill Landrigan in Arizona was also linked to two executions in Georgia around that time — Brandon Rhode in September 2010 and Emmanuel Hammond in January 2011. Both men died like Landrigan, with their eyes open. In an interview for an article I wrote for The Nation in 2011, Hammond’s lawyer said her client’s death had appeared painful — “like nothing I have ever seen before.” Because Georgia’s open records law at the time allowed the disclosure of the state’s source of lethal injection drugs, Hammond’s lawyers were able to trace the sodium thiopental used to kill him to a strange Britain-based pharmaceutical wholesaler named Dream Pharma Ltd. As I wrote at the time, its headquarters were “a rented space in the back of a driving school in a West London suburb. Its bare-bones website boasts that it can provide ‘discontinued’ and ‘hard to find’ drugs to customers, promising that ‘confidentiality will remain paramount.’” Not long after news broke of the state’s sketchy execution source, the DEA seized Georgia’s supply of sodium thiopental, citing “questions about the way the drugs were imported.” Following the DEA raid, two things happened quickly. First, Georgia hastily adopted a new drug to replace sodium thiopental: the barbiturate pentobarbital, over the objections of a Danish company named Lundbeck Inc., which warned the state that the drug was not meant for such use. Georgia ignored Lundbeck’s warnings, using the pentobarbital to execute Roy Blankenship, who “jerked his head,” lunged “with his mouth agape” and whose eyes “never closed,” according to one AP reporter in June 2011. Second, on the urging of the Georgia Department of Corrections, lawmakers drafted a bill to block the release of any information about executions under the Open Records Act. Georgia’s Lethal Injection Secrecy Act, passed in March 2013, classifies as a “confidential state secret” the identity of “any person or entity who participates in or administers the execution of a death sentence” or who “manufactures, supplies, compounds, or prescribes the drugs, medical supplies, or medical equipment utilized in the execution of a death sentence.” Apart from its assault on transparency, Georgia’s law now meant that condemned prisoners were not entitled to know the source of the drugs that would be used to kill them. This “created a catch-22 for any death-row inmate seeking to challenge Georgia’s lethal injection protocols,” as legal reporter Andrew Cohen wrote at the time. Without any information about where the state procured its drugs, prisoners could not fight their executions on Eighth Amendment grounds — even as they had ample reason to fear a cruel and unusual death. Nevertheless, in 2014, the Georgia Supreme Court upheld the new law, calling the need for secrecy “obvious,” in order to avoid the “risk of harassment or some other form of retaliation” for those involved in executions — despite any lack of evidence that such risks existed. As secrecy laws have continued to pass, most recently, Gov. Terry McAuliffe of Virginia took a bizarre stance on the matter, urging lawmakers to reject a bill that would make the electric chair the state’s default mode of execution if drugs cannot be found for lethal injection, while pushing to conceal the identity of execution drug suppliers. Absent such a law, McAuliffe argued, “manufacturers will not do business in Virginia if their identities are to be revealed.”

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