The state of Missouri was set to become the first to employ the anesthetic agent propofol, the same drug that killed Michael Jackson, as its method of executing condemned prisoners. But after vociferous opposition from anesthesiologists and nurse anesthetists as well as threats from Europe to ban the export of propofol to the U.S. should the drug be used in lethal injections, Missouri Gov. Jay Nixon postponed the October 11 scheduled execution of Allen Nicklasson until a suitable replacement for propofol could be found. It was not clear when a new execution date would be set for Nicklasson, but the execution of Joseph Franklin on November 20th is still on in Missouri.
On Monday the Missouri Department of Corrections announced that it will be using the drug pentobarbital for its executions going forward. Pentobarbital is the current drug of choice for 13 other states for lethal injections. Previously the drug sodium thiopental (Pentothal) was both the drug used in every lethal injection in the U.S. and the most commonly used induction agent for general anesthesia. A few years after its introduction ~1990, the short acting and non-nausea/vomiting inducing drug propofol became the drug of choice for the induction of anesthesia. Seeing that their pentothal had now become the drug of choice for one procedure alone, and that procedure was executions, drug makers got together and halted its production. The disastrous results were not easily foreseeable.
Executions Have Serious Impact On Surgical Patient Care
With Pentothal now unavailable to anesthesia practitioners, propofol was now the defacto choice for induction of general anesthesia in every operating room in the U.S., and most every operating room around the world. Certainly there are other possible choices like pentobarbital, etomidate, ketamine and high dose narcotics like sufenta and fentanyl, but each has its limitations and side effects compared to propofol, requiring careful patient selection, whereas propofol is a ‘universal’ agent which can be used for most every patient presenting to the O.R. But in 2009 there came a perfect storm of the recall of multiple batches and cessation of production of propofol by one U.S. manufacturer (Hospira) due to FDA concerns regarding the facility used and contamination, and a similar contaminant issue and recall along with a $500 Million jury award against another (Teva) in a Nevada hepatitis C case. After the Nevada verdict which found that Teva’s production of large vials of single use propofol encouraged multiple use on multiple patients, which is a practice that can lead to contamination with pathogens like hepatitis C, Teva stopped their production of propofol. Teva and Hospira were the only U.S. companies making the drug. As a direct result of the use of Pentothal in U.S. lethal injections, the anesthesia profession was left without both Pentothal and propofol, and for the fist time since 1939 no clear singular drug of choice for the induction of general anesthesia.
In the face of a serious shortage of propofol, with many facilities unable to obtain the drug at all and alternative drugs now also in short supply, the FDA gave emergency approval of a number of foreign-made versions of propofol to enter the U.S. market. Anesthesia providers stared with wonder at the new propofol vials covered in foreign language labeling. But they were just happy to finally get some relief for the shortage. That is until state correctional departments began running out of their existing Pentothal supplies either through use or expiration and European manufacturers and/or states refusing to export the drug after getting wind of U.S. state intentions to use it for executions. Throughout this period (late 2009 through 2012) patient care was seriously impacted and states even postponed executions. Hospira resumed the manufacturing of propofol in 2011.
States Find A “Loophole” For Obtaining Execution Drugs
Eventually, in the face of growing objections to the use of propofol in executions, states turned to a relatively seldom used in anesthesia agent and a clandestine method of obtaining it. Pentobarbital, a drug in the same barbiturate family as Pentothal, has similar effects and when given in large doses is quite effective in killing someone. Even more importantly, the states likely reasoned, the anesthesia community and others may not be as concerned about some manufacturers ceasing its production in response to their using it for lethal injections. But, just to be even more cautious, they decided not to obtain the drug from the manufacturers or their distributors. Instead they have turned to “compounding pharmacies”. Compounding pharmacies process ingredients to fit the needs of individual patients and are regulated by individual states – not the stricter Food and Drug Administration, which regulates drug manufacturers. Now this processing of ingredients can be as simple as taking the drug as manufactured by a drug company and repackaging it, say in an IV bag instead of a syringe. What is certain is that no compounding pharmacy is making pentobarbital from scratch. Using a compounding pharmacy is a choice made by departments of correction for ONE reason alone: to hide from the manufacturer the fact that their drug is being used in an execution. And with good reason. Drug companies did not turn a blind eye to the use of pentobarbital, but instead placed restrictions on its use for executions, refusing to sell the drug to states for that purpose.
A few states have gone to great lengths to hide their use of the drug from drug makers. Georgia for example made information regarding the obtaining of the drugs used in their lethal injections a state secret. They passed legislation that made it illegal to divulge the name of the manufacturer or distributor of any lethal injection drug, even to a court of law. Nothing else under Georgia law is a state secret. Texas went ahead and just told the drug maker’s distributor a bold faced lie. The Texas Department of Corrections purchased pentobarbital from Pharmacy Innovations, a NY company, under the name of a hospital that has not existed since 1983, the Hunstville Unit Hospital. A second Texas supplier, a compounding pharmacy, is upset with Texas because of a broken promise not to reveal who Texas got the drug from. Both suppliers have either blocked the purchase or demanded return of any shipped drug. For an in-depth discussion about Georgia’s efforts and the seeming illegality of obtaining drugs from a compounding pharmacy read our piece HERE.
A 2012 Gallup poll measuring public support for the death penalty places it at 63% in favor. Notably when asked ‘What is the roper punishment for murder-the death penalty or life in prison without parole?’, the public is nearly evenly split on the question. It begs the question, which would the public prefer-the death penalty or the availability of the safest and most appropriate drugs for the anesthetic they may need? I think one can safely and accurately predict the overwhelming choice.