New Execution Drug Causes Uproar
(04/01/2011)

AUSTIN, Texas — A Danish company that has become a key supplier of an execution drug in the U.S. says it will not withdraw or restrict it, even though it objects to the drug being “misused” for capital punishment.

Lundbeck A/S is doing “all we can” to dissuade U.S. states from using pentobarbital for lethal injections, but won’t pull it from the U.S. market, CEO Ulf Wiinberg said.

Pentobarbital is a sedative used to treat a variety of medical conditions, including epileptic seizures. It is also used to euthanize animals.

“Financially speaking, this is not an important product for us and we thought about whether we should withdraw it, and the reaction we got from doctors was that they didn’t want us to withdraw the product,” Wiinberg said at the drug maker’s annual shareholders meeting in Copenhagen.

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Death penalty states began switching to pentobarbital earlier this year for lethal injections to replace sodium thiopental, which is no longer readily available.

Pentobarbital has already been used to execute prisoners in Ohio and Oklahoma, and Mississippi and Arizona are also considering switching to pentobarbital for lethal injections.

Texas has scheduled its first execution using the drug but attorneys for two condemned Texas inmates filed suit challenging the state’s change to pentobarbital.

Texas Department of Criminal Justice officials failed to comply with proper administrative procedures when they announced two weeks ago that the drug would replace sodium thiopental as one of three drugs used in executions, lawyers for condemned inmates Cleve Foster and Humberto Leal argued in a lawsuit in state district court in Austin.

Foster would be the first Texas inmate on whom pentobarbital would be used as part of the lethal injection.

According to the lawsuit, the Texas prison agency violated the Texas Administrative Procedures Act, which requires notice and comment, before changing the execution protocol behind closed doors.

Lundbeck has written letters to prison authorities in the U.S. asking them not to use pentobarbital for executions, to no avail.

The company is now coming under pressure from human rights groups opposed to the death penalty to take stronger action, such as rewriting distribution contracts with clauses prohibiting sales of pentobarbital to American prisons.

Lundbeck said it would be impossible for distributors to follow up on how every vial is used. The company says it sells about 50 million doses of pentobarbital a year.

The demand for pentobarbital comes amid a shortage of sodium thiopental, another sedative that is part of the three-drug lethal injection cocktail used by nearly all 34 states in which the death penalty is used.

The manufacturer of that drug, Hospira Inc., said in January it would cease production when lawmakers in Italy, home of the company’s new factory, demanded assurances that it would not be used in executions. The announcement prompted many U.S. states to seek out alternative drugs and drug administration protocols for their executions, while others imported the drug from international manufacturers under problematic circumstances.

The U.S. Drug Enforcement Administration recently seized Georgia’s supply of sodium thiopental over questions about how it imported the drug from Britain.

Authorities in Denmark, which also opposes the death penalty, are not expected to intervene against Lundbeck because the plant where it makes pentobarbital is in Kansas.

The Texas lawsuit seeks a court order to block the new procedure and require executions be carried out under the previous protocol, which would mandate the now unavailable sodium thiopental as one of the drugs.

Oklahoma changed its execution procedure to include pentobarbital as part of a similar three-drug mixture while Ohio uses pentobarbital exclusively. The courts in both states have backed the procedures.

The suit said under the Administrative Procedures Act, a Texas agency changing a rule must give at least 30 days notice of its intent, must provide interested parties a reasonable opportunity to provide views or arguments regarding the rule change and must hold a public hearing on the change if at least 25 people or an association of more than 25 people request a hearing.

“TDCJ went to great efforts to shield its change in execution procedure from the light of day,” the suit states. “Executions, and the manner in which we carry them out, are of unique public interest and importance. “These are precisely the sort of policy decisions that should be aired in the light of day.”

“There can be no dispute that the adoption of the new protocol did not include the public involvement that the Legislature expects an agency to invite and consider when exercising delegated rulemaking powers,” according to the suit.

Death penalty opponents are hoping Lundbeck’s shareholders will apply pressure on management to take action. Among Lundbeck’s institutional investors are Scandinavian pension funds, including oil-rich Norway?s Government Pension Fund Global, which at the end of 2010 held a 0.68 percent stake in Lundbeck worth $25 million.

The fund has strict ethical guidelines banning investments in tobacco companies and some weapons firms, although the guidelines do not address companies associated with capital punishment.

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