Arizona Botched Lethal Injection: Secrecy, Compounding Pharmacies And The Eighth Amendment

Updated Monday, July 28, 11: 43 a.m. ET with a statement from the International Academy of Compounding Pharmacists.

The third botched lethal injection execution in the U.S. this year has elevated concerns about the transparency of execution materials and methods in states where capital punishment is still legal.

It took nearly two hours for Arizona death-row inmate Joseph R. Wood III to die following a lethal injection on Wednesday. After an hour of witnessing his client “gasping and snorting,” his lawyer filed for an emergency stay, requesting that the Arizona court order lifesaving provisions. Wood died before any decision was made.

Acccording to a report in the Guardian, at least 13 states have enacted laws that conceal the identities of lethal injection drug suppliers, and these rules have been consistently upheld in the face of legal challenges. "The states have kind of insulated themselves," said Jennifer Moreno, a staff attorney with the Death Penalty Clinic at UC Berkeley.

Wood had previously been granted a a temporary stay of execution last week by the U.S. Court of Appeals for the Ninth Circuit, which agreed that Wood was entitled to information about the source of the drugs used to execute him and the qualifications of his executioners -- the first successful challenge to a state shield on lethal injection sources. But not for long: the Supreme Court lifted the stay a few days later, and Wood became the first death-row prisoner to die by lethal injection since Oklahoma prisoner Clayton Lockett appeared to suffer through a prolonged execution in April. Wood was given the same drug combination used in yet another botched execution in January in Ohio: midazolam and hydromorphone.

Even convicted murderers retain certain constitutional rights, including the Eighth Amendment's protection against cruel and unusual punishment. But if the details of an execution are kept secret, it is impossible to know if it upholds constitutional law.

“That’s the problem,” Moreno said. “All there is to do is put speculative arguments in front of courts: Using compounded drugs might cause this, but we don’t know where they are coming from; we don’t know the conditions under which they are being made. So we can’t point to anything real because we don’t have the information."

“We know that these two drugs were used in the terrible execution in Ohio but we don’t know if there are additional problems going on with these drugs ... we don’t know the qualifications of the folks involved,” Moreno said. “We could list the range of possibilities of things that could potentially go wrong, but we can’t attest to any specific fact that we know."

In a sense, the increasing opposition to capital punishment in the U.S. has claimed transparency as a victim of its success. Prisons are turning to compounding pharmacies as the manufacturers of previously common lethal injection drugs, thiopental and pentobarbital, have slowed or halted production in the face of public criticism for their association with state-sanctioned executions.

In addition to being protected by state shield laws, compounding pharmacies operate in a regulatory gray area, since their primary purpose is to produce drugs that are not commercially available or are still pending FDA approval. “Up until the point at which a drug has FDA approval, it’s considered a new drug,” Moreno said. But “the FDA recognized that people need these drugs. Kids need to be able to take an antibiotic that tastes like bubble gum, people need to be able to take drugs that don’t have additives they’re allergic to, and whatnot. So the FDA carved out these ‘hands off’ exceptions for compounding pharmacies and left that regulation up to the states.” A compounding pharmacy can be exempt from federal regulations for the creation of pharmaceutical products if certain conditions are met. They include an individual physician’s prescription and a requirement that the compounds are not copies of commercially available drugs.

Sarah Sellers, a former safety reviewer for the FDA, said that while capital punishment executions “are not considered the practice of medicine at all,” some states allow pharmacies to supply prisons with lethal injection drugs based on an order that is seen as the equivalent of a prescription.

“As long as these pharmacies are getting prescriptions, even though it’s not pursuant to the medical needs of the patient, they are still sort of working within the framework that was set up by Congress,” said Sellers, now an advocate for more regulation of compounding pharmacies. “A pure technical read of the guidance would potentially make what they are doing in violation of the law, but the FDA’s enforcement discretion also comes into play.”

Lawmakers involved in the passage of secrecy laws have not provided a great deal of public explanation for them. “It’s a very dark black box,” Sellers said. “I don’t think anyone has a logical explanation” for the necessity of such laws.

One likelihood is that by shielding compounding pharmacies, prisons are protecting their own supply of lethal injection drugs. Prisons also have the option of creating lethal injection combinations onsite, a costly alternative that would subject the prisons to tighter federal regulations.

Another possibility is more sinister. Texas Attorney General Greg Abbott had for years been outspoken in favor of transparency in execution drug suppliers. But late this spring, Abbot made an about-face and voted in favor of keeping drug supplier identities secret, citing an unspecified safety threat. The nonprofit group Texans for Public Justice released a report ahead of the reversal that showed an owner of a Texas compounding pharmacy had donated $350,000 to Abbott’s re-election campaign.

The Texas attorney general’s office provided the full ruling but declined to answer questions about Abbott’s change of heart.

As previously reported by CNN, according to the Center for Responsive Politics, the International Academy of Compounding Pharmacists has spent more than $1 million over the past decade on lobbying. An IACP representative said that "none of those funds were used to advocate for shielding anyone's identity. IACP has not been engaged in any debates, discussions, negotiations or even dialogue with any official about compounding medications for lethal injections in any state. Not one."

IBTimes is currently reviewing the IACP's political donations. A representative provided IACP's statement on lethal injection drugs:

"IACP has taken no formal position on compounding pharmacies’ preparation of drugs used in executions. The pharmacy profession recognizes an individual practitioner's right to refuse to dispense a medication based upon his or her personal, ethical and religious beliefs. In a very few cases, compounding pharmacies have been asked by state corrections agencies to assist in preparing drugs used in executions because pharmaceutical manufacturers have unilaterally restricted distribution. IACP believes state corrections agencies should work first with the pharmacy services providers -- the companies that provide medications to prisoners within their systems -- to source or compound drugs for executions before soliciting a traditional compounding pharmacy.”

It can feel untenable to focus significant attention on the procedures involved with capital punishment. Ultimately, lethal injections are intended to kill. But the response to these drawn-out executions may be seen as a reflection of an American public that is increasingly uncomfortable with what many consider to be a primitive aspect of our legal system. Moreno said the death penalty is given exceptional treatment even within the courts, for better or worse.

"There's a long history of death pentalty jurisprudence in which they talk about death being different. That's why defendants are entitled to extra due process," Moreno said, "because someone would be taking [their] life."

Moreno said she and her colleagues are finding that exceptions can be made "in a reverse way," in that courts don't always hold death penalty cases to the same standards as other types of litigation.

"When it comes to discovery, when it comes to taking departments at their word, when it comes to allowing agencies to do things," death-pentalty litigation is often handled differently, Moreno said. With regard to transparency in particular, "somehow it always seeems to be different in a bad way."

This story has been updated to remove a suggestion of a link been IACP lobbying and state secrecy laws that shield the sources of lethal injection suppliers.