The decision last week by pharmaceutical giant Pfizer to block the use of its drugs for executions has both symbolic and practical implications for the continued imposition of the death penalty in America. It will not remotely end the use of capital punishment in those states still are inclined to use it. But by forcing officials in those states to more aggressively rely on secret compounding pharmacies it will generate stronger arguments designed to undermine the death penalty’s legitimacy under the Eighth Amendment. And how those arguments are resolved depends largely on what the Supreme Court looks like five years from now.
As a practical matter Pfizer’s new strategy will make it harder for capital states to continue executing prisoners, especially once the current supplies of lethal drugs expires (if they haven’t already). Pfizer now will require from government officials written assurances that company drugs will be used solely for medical purposes; used, that is, for extending, not ending, life. This is so, some observers suggest, because state officials have in the recent past misrepresented the way in which they’ve intended to use drugs—telling company officials they are for medical purposes when in fact they are for executions. Will the requirement of a written record curb this alleged abuse? No one yet knows.
Pfizer also is putting in new controls over distributors of its drugs. If those distributors violate the new restrictions—say, by turning around and selling Pfizer products to state executioners in violation of the company’s new policy—they can lose all of their Pfizer business. The company, in effect, is flexing its considerable market muscle to send a clear signal that it does not want its products to be associated with state-enforced death. Supreme Court Justice Samuel Alito last year famously called this trend the result of a “guerrilla war” against the death penalty. Others might call it simply a vivid expression of capitalism; the right not to sell your product for a particular purpose.
What kinds of products, for example? First, the drugs midazolam, propofol, and hydromorphone that are used as sedatives for the initial stage of a three-drug lethal cocktail administered to convicted murderers strapped to a gurney on death row. Second, the drugs pancuronium bromide, rocuronium bromide, and vecuronium bromide used as paralytic agents. Finally, the drug potassium chloride, which stops the heart and ends the life of the condemned prisoner. (Because of drug shortages that predate Pfizer’s move many states already have moved away from this protocol to a one-drug or two-drug methods using drugs like pentobarbital or midazolam. Some states, like California, likely won’t be using any of the drugs Pfizer seeks to block).
Whether one frames Pfizer’s move as a moralistic corporate strategy or a blunt political statement or some combination of both it surely came as no surprise to state officials in capital states who have had to move away anyway over the past few years from the use of FDA-approved drugs for executions. Pfizer, remember, is the latest, not the first major drug company to turn its back on the execution business. For execution officials this has meant an increased reliance upon two relatively new elements of death penalty law: the use of shadowy compounding pharmacies to manufacture and deliver drugs to state executioners and the proliferation of “state secrecy” laws designed to protect the identity of these pharmacies from public scrutiny.
Pfizer’s move will only increase the speed and intensity with which officials are forced to rely on compounding drugs and the new state-sponsored secrecy that surrounds them. Either that or those officials more quickly now will turn away altogether from lethal injection as a method of execution and turn to other methods. Utah, for example, already has done this, going back to the firing squad. So has Tennessee if lethal injection is unavailable there. Virginia lawmakers endorsed a return of the chair only to be blocked by the commonwealth’s governor, who pressed ahead with plans to use compounding pharmacies. Oklahoma lawmakers want to use nitrogen gas.
Each of these methods will be challenged anew by lawyers for condemned prisoners (even though the U.S. Supreme Court has consistently upheld a variety of execution methods). And so will the new layers of secrecy that are cropping up in capital states (even though the justices in Washington have failed or refused on several recent occasions to hear cases that centrally raise the issue of the constitutionality of this secrecy). Does Pfizer’s pointed statement count as an example of “evolving standards of decency” under the Eighth Amendment? Probably. Does it count enough to change the minds of any Supreme Court justice? Probably not.
Pfizer’s new position doesn’t change lethal injection law. It doesn’t materially change current practices at the state level. But by accelerating a trend already underway it makes it more likely that sooner, rather than later, the Supreme Court will be forced to accept a case that raises an essential question about the death penalty: how secret can an execution via compounded drugs get before it cannot reliably be assessed by the courts? When capital states cross that line, and they are inching toward it, they won’t likely find as much support from the justices that they enjoy today.
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.