The Shield Law Dilemma

As the death penalty reaches its lowest support in decades, pharmaceutical companies have become reluctant open participants in executions. Unfortunately, an increasing number of shield laws may stand in the way.

By Rory Fleming

Tagged criminal justicedeath penalty

Bobby Wayne Stone shot and killed a sheriff’s deputy, then was sentenced to death in 1997. (He had to be sentenced to death again in 2005 because the trial court made several constitutional errors.) Stone has significant organic brain damage that causes both cognitive and impulse control problems, has an IQ score indicating that he is intellectually disabled, and was drunk at the time of his crime. South Carolina will not execute Mr. Stone, but for a different reason. According to Governor Henry McMaster and the state’s top prison official, Bryan Stirling, it is because the state lacks a “shield law,” which would conceal the name of the pharmaceutical company that provided it.

Megan McCracken and Jennifer Moreno at University of the California-Berkeley Law School Death Penalty Clinic’s Lethal Injection Project have written that states have “always shielded the identities of executioners.” In that same vein, they are now trying, with mixed success, to pass laws censoring the names of companies providing execution drugs. Before these laws existed, only the identities of people directly performing an execution were concealed. Shield laws also allow drug distributors to sell the drugs of large pharmaceutical companies for execution purposes, without these companies being informed—or being able to object, should they wish to. The states with the most recent recent “success” in executing people have been those who have effectively implemented such lawslike Arkansas and Oklahoma. Fifteen of 31 states with the death penalty have shield laws on the books—all of them implemented since April 2017.

Death penalty abolitionists and activists have been, unsurprisingly, increasingly pushing against the promulgation of such “shield laws.” The National Coalition to Abolish the Death Penalty tracks their developments and has tied their proliferation to an increasing number of botched executions, as states have begun using drugs never before used for executions, such as those customized from compounding pharmacies as opposed to the three-drug “cocktail” popular before 2009: sodium thiopental, pancuronium bromide, and potassium chloride. When an execution secrecy law passed in Virginia in 2016, Virginians for Alternatives to the Death Penalty posted an article on their site calling it “one of the sadder” laws passed in recent memory.

These laws have been popping up with increasing frequency, ever since around 2011 when companies like Pfizer started making it clear that they are in the business of sustaining and improving life, not terminating it. Following one such proclamation by Pfizer in 2016, when it explained that states buying certain drugs would now have to certify that the drugs would not be used for penal purposes, Maya Foa from Reprieve, a UK-based human rights organization that works to end the torture and abuse of prisoners, stated that “all F.D.A.-approved manufacturers of any potential execution drug have now blocked their sale,” for lethal injection purposes. Foa had previously, in 2011, identified Lundbeck, a Danish company, as the largest provider of pentobarbital, then one of the most common drugs used in executions. In response, Reprieve began issuing press releases each time a prisoner was executed with Lundbeck’s drug, leading anti-death penalty activists to stir up social media outrage toward the company. Lundbeck was forced to come forward, claiming to be unaware of the fact that U.S. states were using their drug for this purpose—instead of its intended purpose as a treatment for epilepsy—leading it to cut states off from its supply. Shortly after, ten American pharmaceutical companies followed suit. In part due to these efforts, the annual number of executions is down from 46 in 2010 to 20 in 2016.

As public support for the death penalty reaches its lowest level in decades—with 55 percent in favor, down from 80 percent in the mid-1990s, according to Gallup—pharmaceutical companies have become worried enough about their drugs being used for executions that they have gone so far as to demand that some state officials return their drugs. Earlier this year, U.S. medical supply company McKesson sued Arkansas for what it claimed was the planned misuse of its drugs to carry out the execution of eight people in 11 days. According to the complaint, agents of the Arkansas Department of Corrections ordered the drug, which is also used in hospitals as a muscle relaxant during surgeries, under false pretenses. Consequently, some states have looked to compounding pharmacies that mix drugs for personalized medications as an alternative. Compounding pharmacies face less regulation from the F.D.A because the Food, Drug, and Cosmetic Act mostly leaves their oversight to the states. However, when state and federal investigators heard that a compounding pharmacy in Oklahoma had provided drugs for at least three Missouri executions, it was quickly shut down, after it admitted to almost 2,000 drug safety, sanitation, and licensing violations. The prominent Catholic nun and activist, Sister Helen Prejean, has called lethal injection with substances from compounding pharmacies “medical experimentation.”

While compounding pharmacies may be more free to sell their drugs for executions, these pharmacists are becoming increasingly concerned over potential scorn from activists. In 2014, a spokeswoman from the Tennessee Department of Correction said that the department had managed to identify pharmacists willing to sell drugs for executions, but most were “unwilling to do so without the protection of confidentiality.” While it is not clear if these pharmacists directly lobby legislatures for shield laws, the fact that they do exist has been a driving force behind the passage of such laws in certain states, including in Tennessee.

In response to the growing number of such laws, death row inmates, their lawyers, and reporters have all sued states for failing to disclose this information. Death row inmates filed claims that never-before-used drugs could cause undue pain and suffering under the Eighth Amendment, which forbids cruel and unusual punishment. For example, in 2013, Allen Nicklasson requested in Missouri that his execution not proceed, in part because of the claimed risk of a slow and painful death. A federal judge ultimately ruled against him, reasoning that this risk was speculative. Nicklasson was executed after a federal appeals panel agreed, but before the court finished voting on whether his case would be heard again before the entire Eighth Circuit bench. That court then dismissed Nicklasson’s petition for a new hearing as irrelevant, although one Circuit Judge dissented, chastising Missouri officials for using a “shadow pharmacy hidden by the hangman’s hood.” A different Missouri death row inmate, Joseph Franklin, was granted a temporary stay on Eighth Amendment grounds, but he was executed after the same federal appeals court reversed that decision.

Reporters like Chris McDaniel have sued because states have violated their own open-records laws. McDaniel is a BuzzFeed reporter who began his legal fight against the Missouri Department of Corrections in 2014, while working at St. Louis Public Radio. The Missouri Supreme Court refused in 2017 to hear the complaints put forth by McDaniel and others over the secrecy of the pharmacies that provided execution drugs. The ACLU of Missouri is now representing McDaniel in a civil rights suit, because the state’s top prison official refused to let him observe any executions.

As mentioned, views of the death penalty nationally are at their lowest since 1972. In a move that would have been unimaginable just some years ago, earlier this year in South Carolina, the head prosecutor of Spartanburg agreed to a plea deal that guaranteed a serial killer a sentence of life without parole. Just a couple decades ago, in 1996, a crowd cheered at the sight of suspected serial killer Larry Eugene Bell’s hearse leaving the Board River Correctional Institution.

Reprieve’s former Executive Director Clare Algar has herself written that “boycotts don’t work against Texas executioners.” Despite the myriad flaws in capital punishment’s administration, governors rarely commute death sentences, and in Arkansas, lawyers at the attorney general’s office worked through Easter weekend to ensure executions were carried out as planned. But activism targeting pharmaceutical companies has proved a useful tool in killing the death penalty by attrition, alongside better defense lawyering and the election of progressive local prosecutors who will stop seeking it. If activists are able to get rid of the shield laws, that could spell its end for good.

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Rory Fleming is a Minnesota attorney and an alumnus of the Fair Punishment Project, a joint initiative of Harvard Law School’s Charles Hamilton Houston Institute for Race & Justice and its Criminal Justice Institute.

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