There’s a batch of drugs out there that the state of Oregon once planned to kill people with – and I’m obsessed with it. Tracking those drugs has angered me, both as a physician and as a citizen. The drugs got freed up after Oregon’s governor called off all capital punishment for the remainder of his term. He didn’t go so far as to actually commute any death sentences sentences to life, and that politically pragmatic choice mirrors his administration’s financially wise but morally inept decision to return the drugs to the wholesaler. The state’s corrections department told me its drugs would probably end up back on the market – raising my concern, but not the governor’s.
This week, I learned that the American pharmaceutical company Hospira manufactured each of the three drugs Oregon bought with a view to a December killing. Hospira happens to be target of an open letter this month in the medical journal the Lancet that pleads with the company to place proper controls on pancuronium bromide (the paralytic American prisons use to prevent unsightly convulsions as people die). As the packaging on Oregon’s supply attests, Hospira makes domestic pentobarbital sodium, too. That drug, used first in lethal injection, causes sedation. But pentobarbital is actually marketed by another company, Lundbeck. A Danish firm opposed to the death penalty, Lundbeck last month divested its pentobarbital business to another company.
Hospira manufactured and marketed Oregon’s pancuronium bromide and potassium chloride (the final “lethal” injection), and it manufactured Oregon’s pentobarbital sodium. Oregon decided to recoup the $18,000 it spent acquiring all three drugs by returning them to a pharmaceutical wholesaler. The decision looks tone-deaf given international efforts to pressure the United States by placing embargoes on lethal injection drugs. Such import restrictions could tempt Oregon’s unscrupulous wholesaler to re-sell the returned drugs to yet another death penalty state.
I wanted to uncover exactly what will happen to the drug batch now that it could be headed back to market, and reached out to the pharmaceutical companies behind them. They told me that their contracted wholesaler will destroy the three drugs, or store them until expiration. That’s good news, but not for Oregon, as such an outcome makes it doubtful the state will receive anything near the full purchase price it paid, according to sources I spoke with who are familiar with the pharmaceutical returns industry.
I began to realise that though the drugs now reside with a wholesaler, these returns mean Hospira and Lundbeck are engaging in a chain of commerce reaching back to Oregon, despite that end user’s dubious intentions. The economic chain involves a complex contractual system of credits the pharmaceutical industry uses with its wholesalers, which, in turn, have financial relationships with end users like Oregon. The connections are so intimate that once I contacted Lundbeck about the returning pentobarbital sodium vials, that company identified the precise shipment and its current location with a Lundbeck-certified wholesaler within hours.
After I informed Lundbeck of the provenance of the pentobarbital sodium and its impending return, Lundbeck verified that Oregon’s return had arrived, and even knew its precise location – currently locked in the wholesale distribution center’s vault. Lundbeck refuses to identify its wholesaler, which is likely responsible for supplying the drugs for use in lethal injection.
I believe Lundbeck is in a position to live up to its anti-death penalty rhetoric in this case by refusing further economic participation with Oregon, however small the wholesaler’s remaining credit. Lundbeck demonstrated to me that it knows the specific wholesaler that may have sold to Oregon, and the company is aware of Oregon’s returned shipment of pentobarbital sodium. Now, then, it’s time to deny the wholesaler the credits it expects to receive, which, in turn, might deprive Oregon of any refund.
For its part, Hospira should make the same gesture towards the returning pancuronium bromide and potassium chloride. Wholesalers that distribute pharmaceutical products against company policies and common decency shouldn’t share in the return system that facilitates the flow of these drugs to legitimate users.
Of broader concern than punishing one state’s officials for their rotten purchase is that all the ingredients needed in the most widespread lethal cocktail are created in the US. International pressure won’t do much good if Hospira is pumping out all three of the drugs domestically. Hospira insists that it is incapable of implementing a drop-ship program like the one Lundbeck deployed last summer (too late to prevent Oregon buying its pentobarbital) or other tracking, for fear of limiting the many legitimate medical uses for these products.
Hospira CEO Michael Ball, who sends letters to death penalty states letting them know how much he frowns on their misuse of his products, replied to the Lancet. Until public policy changes on capital punishment, there’s little Hospira can or will do, beyond those stern letters, to prevent misuse of Hospira drugs in executions – since, he wrote, Hospira is not willing to restrict distribution of pancuronium bromide and other drugs that have legitimate medical uses.
But now Michael Ball has a good chance to do more than kick off another of his letter-writing campaigns. I believe Hospira and Lundbeck both know they’ve got at least one wholesaler who’s getting a rogue return. Hospira claims it can’t control the wholesalers, but it does have leverage in this case: it’s time both firms step up and refuse to participate in further business with that wholesaler – or admit their own complicity.
The gurney in the execution chamber at Oregon State Penitentiary. Oregon has suspended the death penalty during the term of its current governor, John Kitzhaber. Photograph: Jack Smith/AP