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May 13, 2016

Pfizer gives states yet another reason to seriously consider execution alternatives other than lethal injection

As long time readers know, I have been urging states to seriously explore alternatives to lethal injection for the better part of a decade: in this December 2006 post, for example, I flagged a discussion of various new and old execution procedures and suggested that "states interested in continuing to employ the death penalty should start exploring alternatives to lethal injection." Today, via this New York Times article, states have yet another reason to take this advice to heart: "The pharmaceutical giant Pfizer announced on Friday that it has imposed sweeping controls on the distribution of its products to ensure that none are used in lethal injections, a step that closes off the last remaining open-market source of drugs used in executions."  Here is more:

More than 20 American and European drug companies have already adopted such restrictions, citing either moral or business reasons. Nonetheless, the decision from one of the world’s leading pharmaceutical manufacturers is seen as a milestone. “With Pfizer’s announcement, all F.D.A.-approved manufacturers of any potential execution drug have now blocked their sale for this purpose,” said Maya Foa, who tracks drug companies for Reprieve, a London-based human rights advocacy group. “Executing states must now go underground if they want to get hold of medicines for use in lethal injection.”

The obstacles to lethal injection have grown in the last five years as manufacturers, seeking to avoid association with executions, have barred the sale of their products to corrections agencies. Experiments with new drugs, a series of botched executions and covert efforts to obtain lethal chemicals have mired many states in court challenges.

The mounting difficulty in obtaining lethal drugs has already caused states to furtively scramble for supplies. Some states have used straw buyers or tried to import drugs from abroad that are not approved by the Food and Drug Administration, only to see them seized by federal agents. Some have covertly bought supplies from compounding pharmacies while others, including Arizona, Oklahoma and Ohio, have delayed executions for months or longer because of drug shortages or legal issues tied to injection procedures.

A few states have adopted the electric chair, firing squad or the gas chamber as an alternative if lethal drugs are not available. Since Utah chooses to have a death penalty, “we have to have a means of carrying it out,” said State Representative Paul Ray as he argued last year for reauthorization of the state’s death penalty.

Lawyers for condemned inmates have challenged the efforts of corrections officials to conceal how the drugs are obtained, saying this makes it impossible to know if they meet quality standards or might cause undue suffering. “States are shrouding in secrecy aspects of what should be the most transparent government activity,” said Ty Alper, associate director of the death penalty clinic at the University of California, Berkeley, School of Law.

Just a few prior related posts on firing squads and other alternatives over the last decade:

May 13, 2016 at 06:50 PM | Permalink


Great news. Shame Doug feels the need to lead the obsessed up a blind alley with talk of alternatives.

Posted by: Peter | May 13, 2016 7:03:12 PM

execution alternative: not having a death penalty ... works for many states (de facto or de jure) and nations.

Posted by: Joe | May 13, 2016 10:19:00 PM

Speaking of history, I like to think I put a little chink in the killing armor, but that is probably only delusions of grandeur. If my post gave anyone any ideas, you're welcome.

This is from 2009:

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Is it against FDA regulations to use a drug when it is contraindicated? For that matter, does it need FDA approval for use in executions?

4.3 Contraindications
Thiopental is contraindicated in respiratory obstruction, acute asthma, severe shock and dystrophia myotonica. Administration of any barbiturate is contraindicated in porphyria.

Care should also be exercised with severe cardiovascular diseases, severe respiratory diseases and hypertension of various aetiology.

Patients with hypersensitivity reactions to barbiturates.

Posted by: George | May 14, 2016 5:04:54 AM


It is a complete mystery why states do not use compounding pharmacies within their own prison systems.


The Hippocratic Oath bans both euthanasia and abortion, but not the death penalty.

Not one drug company is restricting drugs used in either abortions or euthanasia (1)


Nitrogen Gas cannot be restricted, is completely painless, creates euphoria, and training for its use is based upon turning a valve an applying an oxygen mask.

This method has been recommended for about 20 years.

The Death Penalty & Medical Ethics Revisited

Posted by: Dudley Sharp | May 14, 2016 8:01:44 AM

Let's end the death penalty! Why does anyone want to perpetuate this?!

Posted by: Kate | May 14, 2016 10:34:05 AM

I knit and knit and knit waiting for the return of my beloved guillotine. It won't be long now.

Posted by: madame de farge | May 14, 2016 2:16:15 PM

@ George, see Heckler v Chaney (1985)
Respondent prison inmates were convicted of capital offenses and sentenced to death by lethal injection of drugs. They petitioned the Food and Drug Administration (FDA), alleging that use of the drugs for such a purpose violated the Federal Food, Drug, and Cosmetic Act (FDCA), and requesting that the FDA take various enforcement actions to prevent those violations. The FDA refused the request. Respondents then brought an action in Federal District Court against petitioner Secretary of Health and Human Services, making the same claim and seeking the same enforcement actions. The District Court granted summary judgment for petitioner, holding that nothing in the FDCA indicated an intent to circumscribe the FDA's enforcement discretion or to make it reviewable. The Court of Appeals reversed. Noting that the Administrative Procedure Act (APA) only precludes judicial review of federal agency action when it is precluded by statute, 5 U.S.C. § 701(a)(1), or "committed to agency discretion by law," § 701(a)(2), the court held that § 701(a)(2)'s exception applies only where the substantive statute leaves the courts with "no law to apply," that here there was "law to apply," that therefore the FDA's refusal to take enforcement action was reviewable, and that, moreover, such refusal was an abuse of discretion.

Held: The FDA's decision not to take the enforcement actions requested by respondents was not subject to review under the APA.

Posted by: Paul | May 14, 2016 3:18:40 PM

@ Paul, thanks for the cite. That the courts could not force the FDA to take action under the APA does not mean the FDA could not change its mind and take action at a later date. There is a solution though:

“With Pfizer’s announcement, all F.D.A.-approved manufacturers of any potential execution drug have now blocked their sale for this purpose,” said Maya Foa, who tracks drug companies for Reprieve, a London-based human rights advocacy group. “Executing states must now go underground if they want to get hold of medicines for use in lethal injection.”

Why else move El Chapo closer to the border and call for his extradition to the United States?

Posted by: George | May 14, 2016 3:53:54 PM

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