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Lethal Injection Protocol, Source of Execution Drugs Challenged in Pennsylvania

Lethal Injection Protocol, Source of Execution Drugs Challenged in Pennsylvania

A long-standing federal class-action lawsuit is challenging the constitutionality of Pennsylvania’s execution protocol, and one of the issues in the case involves the use of lethal injection drugs obtained from a compounding pharmacy.

The execution drugs used by the Pennsylvania Department of Corrections (PDOC) are made-to-order from a compounding pharmacy. Compounding pharmacies mix medications to order on site; they are largely free of Food and Drug Administration (FDA) quality assurances that apply to standardized drugs. Instead, they are regulated by state law. They also have a history of quality control problems.

For example, a scandal that involved cancer patients receiving chemotherapy drugs containing only a fraction of the proper dosage caused the Missouri State Board of Pharmacy to test drugs from compounding pharmacies from 2006 to 2009. It found 20% of the pharmacies failed the tests, with dosages ranging from zero to 450% of the correct amount. The Austin American-Statesman reported that compounding pharmacies did not deliver drugs of proper dosages in one-third of tests conducted in Texas. Plus a compounding pharmacy in Massachusetts was at the center of a fungal meningitis outbreak in 2012 that killed 48 people.

However, obtaining lethal injection drugs from compounding pharmacies circumvents import restrictions imposed by overseas manufacturers that do not allow their drugs to be used in executions. [See: PLN, July 2013, p.22; June 2011, p.1]. Thus, it’s little wonder that PDOC officials would seek out such drugs and fight strenuously to keep the source of the state’s execution drugs secret.

The PDOC ignored two federal court orders to divulge the source of its drugs; prison officials complied only when the imposition of sanctions was imminent. They then tried to keep the proceedings in the class-action lawsuit closed to the public. U.S. District Court Judge Yvette Kane denied the request because the case presented “issues of greater interest to the public.”

On November 5, 2012, the PDOC disclosed that it obtained its lethal injection drugs from compounding pharmacies, and that one of the drugs came from a pharmacy which has had two disciplinary cases filed against it. But the quality of the drugs used in executions isn’t the only issue.

David Waisel, an anesthesiologist at Boston Children’s Hospital, testified that the PDOC’s color-coding of its lethal injection drugs differs from the standardized color codes in the medical industry. One drug, pentobarbital, has a standard yellow label. Execution team members with medical experience could be inclined to use that drug first.

The problem, however, is that in the PDOC’s execution protocol the yellow label is actually used to designate the second drug, pancuronium bromide – a muscle relaxant that renders the person paralyzed. Waisel testified that if that drug was administered first, the prisoner would experience “extraordinary suffering” but could not communicate the pain they felt due to the paralytic effect.

While that problem could be solved with meticulous training on the execution protocols, sworn statements from members of the execution team stated they were not trained in the use of the color-coded lethal injection syringes.

The PDOC defendants in the class-action suit filed a motion for summary judgment on May 24, 2013; most of the pleadings in the case related to the state’s lethal injection protocol have been filed under seal, and the case remains pending. See: Chester v. Beard, U.S.D.C. (M.D. Penn.), Case No. 1:08-cv-01261-YK.

Pennsylvania has conducted three executions since 1976, most recently in 1999, while six Pennsylvania prisoners sentenced to death have been exonerated.

Death row prisoners in a number of other states have challenged the drugs used in lethal injections, as well as the secrecy surrounding the types of execution drugs and where they are obtained. [See: PLN, March 2014, p.46; Aug. 2012, p.17].

On July 22, 2014, the U.S. Supreme Court rejected a challenge to the execution protocol used in Arizona, overturning an appellate ruling requiring the state to disclose details about how the execution would be carried out. Attorneys for Joseph Rudolph Wood, 55, had contended that he had a right to know the qualifications of the members on the execution team and where the lethal injection drugs had been obtained, and that the state’s failure to provide that information violated his First Amendment rights. See: Wood v. Ryan, Ninth Circuit Court of Appeals, Case No. 14-16380; 2014 U.S. App. LEXIS 13867 (9th Cir. Ariz. July 19, 2014).

“Prisoners who are sentenced to death for their crimes have every right to know what drugs are going to be used,” said Stephanie Grisham, a spokesperson for the Arizona Attorney General’s office. “But it would be a bad matter of policy if the manufacturer of these drugs were identified.”

Wood was executed by lethal injection on July 23, 2014. The state used the drugs midazolam and hydromorphone, and it took Wood almost two hours to die. Witnesses reported that he snorted and gasped for air for 90 minutes; one reporter said Wood “gulped like a fish on land.” Prison officials contended they had done nothing wrong, and Governor Jan Brewer said Wood had died “in a lawful manner.”

It is unknown whether Arizona officials had obtained the state’s execution drugs from a compounding pharmacy.



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Related legal cases

Wood v. Ryan


Chester v. Beard,