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Oklahoma May Not Be Capable of a Legal Execution

The death penalty is legal, but selling lethal injection drugs to the state probably isn’t.
October 23, 2014, 11:00am
Image: Eurok/Wikimedia Commons

In April, convicted murderer Clayton Lockett was injected with an experimental mix of lethal injection drugs that, rather than kill him quietly as expected, caused him to struggle for 43 minutes until he died of a heart attack.

In response, the state of Oklahoma halted executions, revised its lethal injection protocol, and spent over $100,000 updating its execution chamber. But six months later, Oklahoma still isn't ready to resume executions.

The state lacks trained medical staff to perform the execution; it doesn't have sufficient lethal injection drugs, and it doesn't have a clear way to get the drugs without violating federal law.

Under the new lethal injection protocol, Oklahoma can use any one of four chemical cocktails to execute prisoners.

The first option is 5 grams of sodium pentothal, which has been difficult to acquire ever since the drug company Hospira stopped making it, citing its use in executions.

Two of the options—hydromorphone and vecuronium bromide coupled with potassium chloride—rely on the sedative midazolam, which was the common thread linking Lockett's botched execution to similar incidents in Ohio, Florida, and Arizona.

The last remaining option for Oklahoma is using 5 grams of pentobarbital, if it can find it

The last remaining option for Oklahoma is using 5 grams of pentobarbital, if it can find it. That means the state is probably going to have to talk to a compounding pharmacy.

Compounding pharmacies make their drugs in-house, rather than sourcing them from a manufacturer. They usually supply patients who can't take mass-produced versions of drugs—a patient who can't swallow solids might need a liquid version of a drug that's ordinarily sold in pill form, for example. As drug manufacturers have stopped selling to state Departments of Justice, compounding pharmacies are increasingly being used to source lethal injection drugs.

Related: Missouri's legal struggles with compounding pharmacies

As they're not regulated by the Food and Drug Administration, using compounding pharmacies to supply drugs could be considered cruel and unusual punishment, according to the Death Penalty Information Center, in the form of negligence or insufficient testing on the part of the state. Death row inmates are now suing Oklahoma on these grounds.

"We allege that the ability to compound drugs, or use compounded drugs, is a constitutional violation, because there are no regulations that govern compounding and the drugs that could be manufactured that way present different risks," Dale Baich, a public defender working on behalf of 21 Oklahoma death row inmates, told me.

Drug Enforcement Administration regulations maintain that a drug can't be made without prescription from a physician, nor can a compounding pharmacy make a supply of a drug for a doctor to keep on hand. That means a compounding pharmacy that issues drugs to the Oklahoma Department of Justice may be violating the law.

"Under federal law, in order for a compounded drug to be made, a doctor has to write a prescription for a patient and the patient or member of his family have to pick up the drug from the compounding pharmacy," Baich said. "And that does not appear to be the case in any of the states that allow for the use of compounding pharmacies."

According to US Pharmacist, the DEA regulations maintain that dosages made by compounding pharmacies "must be patient specific and dispensed only to the patient identified in the prescription… by compounding multidosage batches of controlled substances pursuant to orders that did not identify a specific patient, the pharmacy exceeded its registration."

Oklahoma's lethal injection drug protocol isn't patient-specific; its dosages are specified "for the execution of persons weighing 500 pound or less." It does not specify whether a doctor needs to write a prescription for the state to obtain the drugs, only that "any compounded drug used shall be obtained from a certified or licensed compounding pharmacist or compounding pharmacy in good standing with their licensing board."

So would a pharmacy giving Oklahoma execution drugs be running afoul of DEA regulations?

Compounding pharmacies can only legally issue controlled substances like pentobarbital when "issued by a doctor for a medical purpose in his usual course of medical practice," says Joseph Moses, a DEA special agent.

States are already having difficulty finding physicians willing to take part in executions, says Richard Dieter at the Death Penalty Information Center. Whether or not a physician willing to write a prescription is doing so "for a medical purpose in his usual course of medical practice" is another issue.

Charles Warner, convicted of sexually abusing and murdering an infant, was scheduled to be executed two hours after Lockett. Warner's execution was moved back to November 13. Still not ready, the state has delayed Warner's execution again, as well as two others.

Meanwhile, the cost of capital punishment continue to rise, and support for it continues to drop. One can debate the morality, the costs, and the effectiveness of the death penalty, but no matter how you feel about it, as it stands, it may not be a legally feasible option.