The Sordid Ways Death-Penalty States Obtain Execution Drugs
Executions have been hindered by an unlikely obstacle: the moral compass of the pharmaceutical industry.
This piece was published in partnership with the Influence.
One afternoon, Donnie Calhoun, owner of Calhoun Compounding Pharmacy in Anniston, Alabama—"Compounding for Life's Problems"—came back from a meeting to find a strange request from the Alabama Department of Corrections. The girl who'd answered the phone had written the question down on a notepad: Did he want to make a lethal-injection drug that would be used to carry out an execution?
"I went, what? They do this?" Calhoun recalled. He called them back and let them know that he would not make a drug that could be used to kill. "For me, as a healthcare professional, I want to help people live longer. The last thing I want to do is help someone die."
Other sterile-compounding pharmacists in the state were similarly unenthused about requests to help Alabama execute its death-row inmates. Of the nearly 30 compounding pharmacies contacted by the state, all refused, according to court records. "Of course, we said absolutely not," says one of the owners of Eagle Pharmacy in Hoover, Alabama. "It's something no one wants to do, and it's quite understandable."
Another pharmacist in Virginia adds that someone from the attorney general's office recently popped into his store and asked about lethal injection drugs. "No one will do it," he says. "Maybe you should try executing them with heroin," the pharmacist wise-cracked about a drug that's a whole lot easier to obtain in the state of Virginia.
This time, Oklahoma Department of Corrections obtained the drugs for Warner and Glossip's executions by making a list of pharmacists and calling them up.
First, the officials asked for pentobarbital. The first pharmacist on their list refused to make execution drugs. Others said yes, but that they couldn't get the drug.
So the Department of Corrections switched its drug protocol and went back down its list of pharmacists, until they found one who agreed to provide midazolam, rocuronium bromide, and potassium chloride.
That pharmacist accidentally ordered potassium chloride in a more diluted form than was needed. Seemingly in a rush to correct his mistake, he tried ordering potassium chloride again. But when he tried to pick the drug from a wholesaler's website, he accidentally clicked potassium acetate, a far less common drug.
The pharmacist, whose identity remains confidential, tried to explain his error to the grand jury: "In my head I was not thinking potassium chloride, because I was looking at it, going, it's potassium. As I said, pharmacy brain versus probably a law brain, I guess. I don't know."
He was paid $869.85 in cash for his work.
On the day of Charles Warner's execution, January 15, 2015, a Department of Corrections employee picked up the drugs from the pharmacy and drove them back to the prison, where no one noticed that the third drug was wrong—even though the Warden wrote down the words "potassium acetate" on the execution drug form.
They photographed the drugs. The IV team made syringes of each drug, and still, no one noticed that the drug meant to stop his heart was the wrong one.
Asked how the team could have failed to notice, the IV team leader replied, "That's a great question. And I don't know that I can absolutely answer that."
Although admitting "the buck stops with me," his explanation for not noticing was that he was so nervous about getting the right concentrations of each drug—a mighty important task, given the horrors of botched executions when the inmate hadn't been adequately sedated.
He continued, "The concentration of this drug [midazolam] is much more concentrated than what we normally use ... So—and I'm not very good at math in my head. So I had to really think about the concentration of that. Am I—is this right?"
He described feeling anxious about getting the dosage right and performing the execution. "Somehow in my—again, my mind is going, 30 minutes from now you're going to be in that room starting IVs on some guy that is not going to like you very much. And you've got—and all eyes are on you, in effect," he said.
The final drug was easy compared to the other two, so it seems he let his attention flag a little bit:
It was three vials; boom, boom, boom. It just took a minute and we drew them up, we were done. It was the easiest of the three. In terms that we didn't have to focus on dilutions and concentrations. We just had to draw them up and they were done. And somehow that glaring word, 'acetate'—I don't know, ma'am. I just totally dropped the ball, is all I can say.
On September 30, a prison employee made another trip to the same pharmacy—this time to pick up drugs for the execution of Richard Glossip.
Glossip's case had attracted international attention. This was in part because of his strong claim of innocence—he was sentenced to die because a 19-year-old meth user who beat a motel owner to death claimed Glossip had put him up to it—and in part because Glossip challenged Oklahoma's drug protocol all the way to the Supreme Court, claiming that midazalom was not a strong enough sedative to prevent him from experiencing pain. The Supreme Court voted 5–4 that states could continue using that drug protocol.
On the day that Richard Glossip was supposed to die, the warden noticed that the third drug in the drug cocktail they were about to prepare was potassium acetate, not potassium chloride. The warden opted to keep quiet about this realization. Later, they were asked why in front of the grand jury.
"When I seen it, I thought it was the same thing," the warden testified. "And I reflected on the way that we had done it previously with the accountabilities to ensure—I didn't know—when the drugs were brought down, I didn't know the pharmacist that we use or the pharmacy. I didn't know who ordered the drugs. That's not part of my job duty. I didn't know it hadn't been looked at, I assumed it had been. I assumed that what the pharmacist provided was that [sic] we needed. So in my mind, that potassium acetate must have been the same thing as potassium chloride."
So the IV team members proceeded to draw up the syringes. At that point, one of them also noticed the drug discrepancy and alerted prison authorities.
Over the next few hours, as Richard Glossip awaited his execution, state officials debated whether to proceed with the killing or to stop it. Governor Mary Fallin's General Counsel pushed to go ahead with the execution after the doctor and pharmacist both said potassium acetate and potassium chloride were medically interchangeable.
"Google it," the governor's general counsel told the attorney general's office, which wanted to halt the execution.
After all, it would look bad if they stopped the execution, he pointed out to the attorney general—because then the public would find out that they had executed Charles Warner using the wrong drug.
As the clock ticked, the attorney general swayed Governor Fallin to grant a last minute delay that would spare Richard Glossip's life—for now. Glossip remains on death row.
The state issued a press release explaining that the executions had been temporarily paused while the governor's office, the Department of Corrections, and the attorney general's office addressed legal issues surrounding their drug protocol: "Executions will resume once those issues have been addressed to the satisfaction of all three parties."
The Oklahoma Grand Jury concludes its report by listing the circumstances that led to this series of blunders.
It's hard to find qualified physicians willing to take part in an execution these days, they point out. Pharmaceutical companies have clamped down on the use of their products in lethal injection. And it's hard to find pharmacists willing to make the drugs instead.
Their solution? Switching to "nitrogen hypoxia"—death by suffocation with gas*.
"Both Doctor A and Professor A testified executions carried out by nitrogen hypoxia would be humane," the report's authors write, "and as nitrogen is the most abundant element in our atmosphere, the components for execution via nitrogen hypoxia would be easy and inexpensive to obtain."
*Correction 8/1: An earlier version of this article suggested nitrogen hypoxia amounts to "suffocation with poison gas," when in fact the gas's lethality stems from winnowing down oxygen in the blood.