Pat Sullivan / AP
Wednesday, March 5, 2014 | 11:44 a.m.
DOVER, Del. — Delaware has 17 condemned prisoners facing the death penalty, but no means of executing any of them.
Like other states, Delaware prison officials have found it difficult to get the drugs used in lethal injections because major manufacturers several years ago began prohibiting the use of their products in executions out of ethical concerns and fearing the unwanted publicity.
As a result, supplies of two of the three drugs used in Delaware executions have expired, according to records obtained by The Associated Press under the Freedom of Information Act. Moreover, prison officials aren't even trying to get the necessary drugs.
"These drugs can be costly, and these drugs have a shelf life," Correction Department Commissioner Robert Coupe said. "There is also the challenge of navigating the marketplace because of the attention that this type of purchase gets."
The source of the drugs is moving to the forefront of the death penalty debate, as lawyers and death penalty opponents seek to find out which companies are providing the drugs. Compounding pharmacies — which custom-mix prescription drugs for doctors and patients — seemed like the answer, but some of them are starting to back away, too.
As a result, many of the 32 states that allow the death penalty are having difficulty not only in restocking supplies, but in trying to find what alternative drugs might be available and changing their execution protocols accordingly.
"It's not just the shortage or the inability to find the drug. It's the inability to make a final determination of what their whole protocol should be and get that approved," said Richard Dieter, executive director of the Washington, D.C.-based Death Penalty Information Center.
The result, according to Dieter, has been a de facto moratorium on executions in some states, such as Arkansas and California. Virginia lawmakers considered legislation this year allowing the state to use the electric chair if lethal injection drugs were not available. In Mississippi, lawyers for a condemned woman sued the Department of Correction this week, asking for more information about the procurement and expiration dates of lethal injection drugs.
"No state has said 'We're ending the death penalty, we can't find the drugs.' ... It's more of a hold on executions rather than backing out of the whole process," said Dieter, adding that it's hard to pin down a number for how many states have had drugs expire.
Delaware prison officials have taken a wait-and-see approach, in part because no execution dates are expected to be set in the next six months.
"We are watching and learning and listening from those news reports as to what options would be available for us to explore if we get an execution schedule," Coupe said.
Coupe believes the agency could find the necessary drugs if an execution date is set.
The last person put to death in Delaware was convicted killer Shannon Johnson, who was executed in April 2012 after waiving his appeals. The state used pentobarbital as the initial sedative before administering two other drugs.
A bill to repeal the death penalty in Delaware cleared the Democrat-led Senate by a single vote last year, even after the chief sponsor removed a provision that would have spared the lives of the 17 inmates awaiting execution. The measure later stalled in a House committee, with majority Democrats acknowledging there were not enough votes.
Currently, Delaware prison officials have only one of the necessary lethal injection drugs on hand, according to records obtained by the AP. The prison agency initially refused to provide the records in response to a July 2013 FOIA request.
"The DOC's contacts with any person or entity regarding the supply, manufacture, prescription or compounding of drugs used in the execution of a death sentence should be a confidential state and trade secret under FOIA," deputy attorney general Catherine Damavandi wrote in October 2013. "Given the controversy surrounding administration of the death penalty, the need for confidentiality to protect the identities of persons or entities who may supply the DOC with lethal injection drugs is obvious."
The AP appealed the records denial to the attorney general's office, which ordered the agency to supply them, just as it had done in 2011 in response to the agency's denial of a previous FOIA request.
Under Delaware's current execution protocol, a condemned inmate is rendered unconscious by a sedative or anesthetic before receiving fatal and potentially painful doses of two paralytic drugs, pancuronium bromide and potassium chloride. Delaware used sodium thiopental as the initial drug before its sole U.S. manufacturer stopped making it in 2009. The state then began using pentobarbital.
Records show that the Correction Department obtained 50 vials of potassium chloride from Cardinal Health in February 2013, replacing 51 vials that expired that same month. The current supply of potassium chloride, enough for four executions, expires in October.
Meanwhile, supplies of the other two drugs, pancuronium bromide and pentobarbital, expired in July 2012 and September 2013, respectively.
Dieter said he was not aware of any state that had considered using expired drugs. Such a move could be fraught with trouble, and likely would result in claims of cruel and unusual punishment.
"You need something that's effective as an anesthetic, and if its 90 percent effective, you might have partial consciousness, partial awareness," he said. "If it's past its expiration date, there are just no guarantees. It might work, it might not."
Facing an impending shortage of pentobarbital, Delaware officials turned to West-Ward Pharmaceuticals of Eatontown, N.J, in April 2013 to try to obtain a similar barbiturate, phenobarbital. The prison agency's former bureau chief for management services exchanged emails with West-Ward's regional sales manager over a week, but the phenobarbital was never obtained.
Similarly, the agency was unsuccessful in trying to obtain pancuronium bromide from Cardinal Health.
"I can't seem to get anyone from Cardinal to call me back or respond to my messages," former DOC bureau chief Kim Wheatley wrote in a July 2013 email to a Cardinal representative. "Not sure what is going on, but I have most recently been told that the item that was on backorder for us is no longer on backorder and in fact was blocked for our purchase from the very beginning."
The Cardinal representative responded three days later, telling Wheatley, "unfortunately, both Teva and Hospira continue to have this item on backorder with no ETA."
Cardinal Health said in a statement it follows manufacturers' instructions regarding restrictions on the distribution of their products.
West-Ward's parent company, Hikma Pharmaceuticals, said it was notified last year about the potential misuse of phenobarbital for executions in Arkansas.
"As we strongly object to the use of our products for capital punishment, once alerted to the potential misuse, we took action," Hikma vice president Susan Ringdal said in an email.