Pharmaceutical Firms Against Lethal Injection and the Ramifications
The United States Department of Corrections faces a lethal injection drug shortage caused by a decreased supply of domestic producers and international legislation making it nearly impossible to import the drugs. Although this drug shortage is what political activists have been demanding for years, the shortage has led to a number of horrifying deaths for prisoners in the U.S. due to states using unregulated, contaminated, or even untested methods in place of Big Pharma’s (the collective of major, multinational pharmaceutical companies) drugs. The artificial shortage has also caused a dramatic increase in the speed and price of executions. Although it may seem controversial at first glance, this article will discuss how it is morally impermissible for Big Pharma to deny the State, and hence its prisoners, access to lethal injection drugs.
More and more pharmaceutical companies, both domestic and international, have been refusing states in the U.S. the right to use their drugs for lethal injection. The execution drug shortage in the U.S. began in 2010 when Hospira, the only domestic manufacturer of the drug, decided to leave the market (Alper 2014, 30). Hospira, as well as the other drug companies that soon followed in their steps, claimed it was morally wrong for them to sell drugs that would be used for executions, as their drugs were made to help people by providing therapies and treatments to improve individuals’ overall quality of life (Barry 2014). However, by prohibiting states from using their drugs, the conditions of those on death row became drastically and measurably worse due to the lack of reliable FDA-approved execution drugs. The shortage caused states to use less humane methods of execution, such as the shooting squad, the electric chair, and even hanging (Wade 2021). Some states decided they would proceed with planned executions using lethal injection, but had to secure the drugs from unreliable or even illegal sources, which lead to grim and distressing executions for several prisoners.
In this article, I will examine the motivations that ‘Big Pharma’ may have had to leave the market and the impacts that its decision has had on the United States Department of Corrections. First, I establish why lethal injection is the most humane method for execution. Second, I examine possible motivations for why Big Pharma made such a choice through a political and economic lens. Finally, I discuss the ramifications of Big Pharma’s choices and how Big Pharma may have predicted some of the second-order effects of their decision that created an opportunity for increased market profit.
Although Big Pharma cites moral obligations for their refusal to sell their drugs, I argue that it is morally impermissible for them to withhold the means of lethal injection, the most humane method of execution, from the State, and more importantly, from the prisoners. For my argument, I will make no assumption about the moral permissibility of capital punishment. This question is irrelevant to my argument and readers are free to choose whether they side with or against the act of capital punishment.
2. Why Lethal Injection is the Most Humane Method of Capital Punishment
A humane execution is one in which the prisoner is treated with dignity and humanity, and hence the pain and suffering they feel both physically and mentally, as well as the humiliation of the prisoner and their loved ones, should be minimized. In the U.S., the Supreme Court has ruled the following methods of execution to be constitutional: hanging, electrocution, gas chamber, firing squad, and lethal injection. Three of these five methods—hanging, electrocution, and firing squad—visibly alter, distort, or harm the prisoner’s body, causing excess pain to loved ones and taking dignity away from the prisoner. Hence, they are ruled out as the most humane methods.
This leaves two remaining options: lethal injection and gas chambers. The latter has a very prominent negative connotation associated with it for many people today because of the use of gas chambers by Hitler during the Holocaust. Therefore, by using the gas chamber to perform executions, the State could be bringing forth very painful memories for some, resulting in excessive mental anguish. As such, lethal injection seems to be the most humane method of capital punishment because it minimizes body mutilation, bleeding, unpleasant smells, sounds, and sights, and does not cause involuntary defecation or urination (Philipott 2014; Salk 2015, 287).
Opponents of lethal injection argue that, although other methods of execution may be more gruesome to watch, they are more humane due to their higher success rates. Lethal injection is the most botched method of execution, with a failure rate of 7% (Gibson and Lain 2015). It is performed in three steps, the first of which is injecting the prisoner with sodium thiopental, an anesthetic that, if administered properly, should make the prisoner unconscious for the entirety of the operation (Philipott 2014, 1; Gibson and Lain 2015; Alper 2015, 28). The second is to paralyze the prisoners’ muscles by injecting them with pancuronium bromide, which should be painless, assuming the first step was done correctly. Lastly, the prisoner is paralyzed and can be injected with potassium chloride, which stops their heart and ultimately kills them.
When done properly, lethal injection takes only a matter of minutes—about seven on average—most of which should be painless for the prisoner because they are under anesthetic. This method is less disturbing to watch for loved ones because the body is paralyzed (Philipott 2014, 1; Gibson and Lain 2015; Alper 2015, 28). However, if the first injection is not performed correctly or dosed accurately, the prisoner will be able to feel their heart pounding as it is going through cardiac arrest and, because of the paralysis, will be left helpless and unable to communicate their pain to others.
Even ignoring the longer time frame it would take for the drug to kill the prisoner if the dosage were incorrect, the pain and suffering experienced by the prisoner if their lethal injection procedure was ill-performed seems to be enough to reconsider lethal injection as the most humane method. However, 93% of the time lethal injection is done correctly, resulting in a quick and painless death for the prisoner and a less horrific sight for loved ones. Lethal injection is also the most recently developed form of capital punishment, so it does not have the same long history of trial-and-error other methods may have that lead to a higher success rate (Philpott 2014, 1; Gibson and Lain 2015). Although its success is not always guaranteed, lethal injection is currently the most humane method for executing prisoners, as it allows for a quick, painless, and dignified death when done correctly, and even in the case when it is botched, the pain, suffering, and humiliation placed on loved ones is minimized and the dignity of the prisoner is still left intact.
It is worth noting that part of the reason lethal injection has such a low success rate is that medical doctors are not allowed to administer lethal drugs due to the restrictions placed on them by the Hippocratic Oath that requires them to “do no harm.” However, one might wonder whether a doctor really would be doing harm by making sure such a procedure goes as smoothly and painlessly as possible if it is, one way or the other, the ultimate fate of the patient. Nevertheless, whether or not doctors should be allowed to perform, or at least proctor, lethal injections for either capital punishment or euthanasia is a separate, complicated topic that lies outside the scope of this article (Silver 2003, 1-7).
3. Motivations Behind Drug Company’s Resistance to Sell Drugs for Lethal Injection
I now discuss why the lethal injection drug shortage is an ongoing problem, and the reasons drug companies have stopped producing and selling their drugs to the Department of Corrections in the U.S. First, I cover a brief history of the drug shortage and how states quickly lost all reliable sources of sodium thiopental available to them. Then, I discuss the political and economic motivations behind pharmaceutical companies’ decision to stop selling drugs used for executions.
3.1 History of the Drug Shortage
Capital punishment is banned throughout the European Union and is culturally seen as a barbaric form of punishment, although it is still performed in the U.S. (Alper 2014, 28). European nations and political activists have been trying to stop the practice of capital punishment in the U.S. for years, as it is the only western country for the past thirteen years to continue the execution of prisoners. However, despite international pharmaceutical companies urging U.S. prisons to stop using their drugs for executions, not much progress was made to stop capital punishment from occurring for years.
The drug shortage began in 2010 when Hospira, the only U.S. manufacturer of sodium thiopental—the anesthetic used in the first step of lethal injection—was forced to stop manufacturing the drug due to a production problem (Alper 2014, 30). To proceed with planned executions, the U.S. Department of Corrections started procuring non-FDA-approved sodium thiopental from a small wholesaler in the U.K. by the name of Dream Pharma, which was running out of the backroom of a driving school located in London at the time (Alper 2014, 30; Gibson and Lain 2015). Within a matter of months, the U.K., which banned capital punishment over 50 years ago, placed restrictions on the exportation of thiopental, a measure soon copied by the European Union.
In 2011, an amendment was made to the European Commission Regulation 1236/2005, also known as the “Torture Regulation,” to prohibit the trade of “goods which could be used for capital punishment, torture, or other cruel, inhumane or degrading treatment or punishment” (Alper 2014, 28). During the same year, Hospira decided to leave the thiopental market completely to stop its association with capital punishment while also avoiding problems with authorities at one of its major plants, which resided in Italy (Alper 2014, 30; Gibson and Lain 2015; Hospira 2011). Because of the new trade legislation and Hospira’s decision to leave the market, the Department of Corrections was left with no reliable or FDA-approved source of thiopental.
3.2 Political Motivations
Part of the reason that new legislation was passed to stop the trade of drugs used in lethal injection was because of political activists both in the U.S. and internationally (Alper 2014, 28). Some states publicly declared they were actively searching for new drugs to use because of the shortage, which only caused activists to put more pressure on pharmaceutical companies to disallow states from using their drugs for capital punishment. The media portrayed these activists, such as Maya Foa—a political activist working to help vulnerable individuals from oppressive governments—as the sole reason for the drug shortage. CBS News described Maya as “the woman behind the drug shortage [in the U.S.]” (Foa 2021). However, the activists’ attempts to stop the sale of these drugs were not novel. Activists had been pushing drug companies to acknowledge their role in executions since as early as 2001, but the drug shortage did not actually begin until 2011, ten years after their initial attempts (Alper 2014, 32).
Although political activists may have played a small role in stopping the sale of drugs for state executions, virtue signaling was a huge factor for companies to consider. Virtue signaling can be thought of as moral grandstanding where an individual, or in this case, a multinational company, tries to ostentatiously promote a view that helps them gain ‘brownie points’ with other individuals or the media, whether they believe in this view or not. The idea behind firms using virtue signaling is to make the public and media see the company as ‘politically correct’ or ‘morally superior’ to gain their support. In this case, drug companies wanted to promote the viewpoint that they were against capital punishment and the use of their drugs for causing pain or death.
A number of companies that stopped selling execution drugs put out a statement to the public stating they were strongly opposed to their drugs being used for legal injection as their company was created to provide therapy and treatment to individuals, not to put them to death (Alper 2014, 29; Gibson and Lain 2015). The question now becomes whether these companies believe capital punishment is wrong and should stop in the U.S., or whether they were simply virtue signaling to gain the support of the public.
Pharmaceutical companies are known to make large donations to political representatives and parties to gain influence within the government. Some studies have shown that pharmaceutical companies spend the highest amount on federal lobbying of any industry (Wouters 2020). During the 2020 presidential election alone, Big Pharma spent about $92 million on lobbying tactics, with Pfizer being the largest individual spender at $3.7 million (Pharmaceuticals 2017). More than two-thirds of Congressional members, 356 to be exact, cashed in a check given to them by Big Pharma before the 2020 election even began, showcasing the strong influence the Pharma industry has on our country’s lawmakers (Facher and Bartley 2021).
Traditionally, Big Pharma tends to support the Republican Party due to their stance on issues about public health insurance and their lax attitude towards lowering drug costs. Since 1990, republican candidates have received about 64% of the Pharma industry’s donations, and still received most of the funding during the 2020 election despite the effects of the Coronavirus (Pharmaceuticals 2017). The Republican Party is also known for being a strong advocate of the death penalty. Since 2016, the party’s platform states: “The constitutionality of the death penalty is firmly settled by its explicit mention in the Fifth Amendment. With the murder rate soaring in our great cities, we condemn the Supreme Court’s erosion of the right of the people to enact capital punishment in their states” (Political Party Platforms and the Death Penalty). Although this view is explicitly clear in their platform, pharmaceutical companies who are allegedly strongly opposed to the death penalty are still giving millions of dollars to the Republican Party and its candidates.
One may argue that the pharmaceutical companies only support republicans due to other aspects of their platform, and simply choose to ignore their view on the death penalty. However, with the significant amount of influence that Big Pharma has bought from the party, Big Pharma would probably be able to use financial incentives to persuade the Republican Party to change their platform on capital punishment, or at the very least to adopt a more liberal viewpoint on the matter (Wouters 2020). Despite this consideration, the Republican Party’s stance on capital punishment has only become more supportive over time. In 1990, the party stated that they support capital punishment “when appropriate” and “done humanely,” which is much milder than their 2020 platform statement, which “condemns the Supreme Court” for trying to limit the use of the death penalty (Political Party Platforms and the Death Penalty). Because Big Pharma continues to liberally fund the Republican Party and has made no clear attempt to sway their opinion on capital punishment, it seems clear that Big Pharma is merely virtue signaling to gain the support of the public and media. Big Pharma aims to convince the public and media that they are against the death penalty, while also refusing to use the full extent of their influence to abolish the practice.
3.3 Economic Motivations
Another strong motivation for drug companies to stop the sale of execution drugs is the money lost by being associated with lethal injection. Before the drug shortage occurred, the U.S. was procuring most of its supply from Hospira, a subsidiary of Pfizer, which is a multi-national pharmaceutical industry company. Other than Hospira, many execution drugs that are imported were made by other multinational corporations in Europe, similar to Pfizer. These Big Pharma companies are worth billions of dollars and have a vast number of investors, all of whom have different backgrounds and viewpoints. However, because the U.S. was importing drugs from European companies, there was a commonality amongst most investors’ mindsets that concurred with E.U. law–capital punishment is wrong. Because of this anti-capital punishment stance, if corporations were associated in any way with capital punishment, investors began to withdraw and millions of dollars were lost (Alper 2014, 36; Gibson and Lain 2015). In one case, a German investing firm, DJE Kapital, divested 70 million dollars from pharmaceutical company Mylan when it found out the company was producing pancuronium bromide, which is the paralyzing agent used in the second step of lethal injection (Alper 2014, 36; Alper 2015).
Some may say there is still a niche market for execution drugs that companies could fill, which would counteract the loss of money from being associated with the death penalty. However, capital punishment was originally made to make executions more humane and cheaper. Each execution was estimated to cost only about $10 (Pilkington 2021). Companies associated with capital punishment found that they were only making a couple of hundred dollars from selling their drugs while simultaneously losing hundreds of thousands of dollars due to investors leaving (Alper 2014, 36; Gibson and Lain 2015). Because of this difference, there was a much stronger financial incentive for companies to leave the lethal injection drug market than to stay and fill the niche.
4. The Ramifications of Drug Companies’ Decision to Stop the Sale of Execution Drugs
Pharmaceutical companies claim they stopped selling execution drugs to U.S. states because it went against their companies’ moral code—the drugs were created to provide therapy and treatment to improve individuals’ quality of life, not to execute prisoners. However, despite their intentions, pharmaceutical companies are acting immorally by taking away execution drugs because doing so has led to much worse outcomes for prisoners. I first discuss the effects of pharmaceutical companies’ actions, namely the increased speed in executions, the cruel deaths faced by prisoners on death row because of the lack of regulated drugs, and less transparency regarding how states acquire drugs to perform executions. I then discuss some additional economic effects and how Big Pharma may have used the situation as a political and social stunt that has helped them to increase their profits.
As soon as it became clear that there was no longer a direct source for thiopental, states began scrambling to use their current supply of execution drugs before they expired (Gibson and Lain 2015; Barry 2014). Although this may not seem like an intrinsically negative effect, the number and speed of executions soon reached levels never seen before in the 21st century. For example, Arizona executed two prisoners during the same month—which it had only done previously once in 1999—Missouri executed three prisoners within three months, even though one of those prisoners had a petition in the Eighth Circuit that was still under consideration, and Kentucky, despite only having executed three prisoners in the last three-plus decades, considered executing three prisoners within the same day when it realized its supply of thiopental was expiring (Gibson and Lain 2015). Even when a new drug supply was secured, states were still rushing to execute those on death row. As soon as Oklahoma got the court’s approval for a new drug, the state scheduled two executions for the same day, which had not occurred there since 1937 (Gibson and Lain 2015).
Not only was there a newfound rush of states performing executions, but because there was no longer a supply of the federally-approved three-drug cocktail, all but three capital punishment states were also experimenting with a slew of new drugs, which lead to a sharp increase in the number of botched executions. Some were attempting to make a new three-drug cocktail, while others were using a singular drug to cause an overdose to execute the prisoner. Oklahoma approved the use of Midazolam, which was used in 2014 on Clayton Lockett (Gibson and Lain 2015; Neilson 2019). His execution took a total of 43 minutes, more than six times longer than usual, and caused his vein to explode. When Ohio used a three-drug cocktail, including never-before-tested benzodiazepine, to execute Dennis McGuire in 2019, it took him twenty-five minutes to die, during which he was struggling, grunting, and gasping for air (Barry 2014).
Part of the reason for the increase in botched executions was due to a new, unreliable source for drugs: small, local compounding pharmacies. Compounding pharmacies create drugs for individuals who have adverse reactions to typical drugs supplied by Big Pharma and need custom-made medication. Correctional officers sought out these local pharmacies, or “Small Pharma,” to create the drugs needed for executions, thereby avoiding the problems of importing drugs. However, unlike Big Pharma, compounding pharmacies are highly unregulated, leading to less reliable and potent drugs that could be contaminated (Alper 2014, 31; Gibson and Lain 2015).
In October 2012, South Dakota unknowingly purchased contaminated drugs to use for Eric Roberts’ execution, during which, he snorted, gasped for air, and kept his eyes open the entire time (Gibson and Lain 2015). One of Texas’ sources for lethal injection drugs, Greenpark Compounding Pharmacy, has racked up several safety violations in the past few years and has been on probation since it sent a child to the emergency room after giving three children the wrong medication (McDaniel 2018). Five of the eleven prisoners put to death in Texas in 2018 complained about a burning sensation running through them, and one prisoner, Anthony Shore, even yelled out: “I can feel it burning my insides” (McDaniel 2018). Despite this, Texas continued to execute two more prisoners that year.
At first, compounding pharmacies were not receiving much attention from the media despite the number of botched executions they were causing, and they enjoyed the few thousand dollars they would receive as cash payment for making the socially taboo drugs. However, as soon as the media would get wind of a new supplier, the pharmacy would often find a candlelit vigil outside their front door and promptly be hounded by lawsuits from inmates, family members, or activists (Gibson and Lain 2015). Soon, it became difficult for states to find Small Pharma firms to make execution drugs, and so came the newfound secrecy aspect of lethal injection.
At first, the secrecy was limited to within the prisons, including confidentiality agreements, “under the table” cash payments, and redacted or even missing records (Gibson and Lain 2015; Alper 2015). Correctional officers were also partaking in hidden, backdoor transactions that would sometimes occur outside of state jurisdiction. Secret transactions made it possible for prisons to get the drugs they needed to perform executions while leaving their sources anonymous so they would not face any lawsuits or harassment. Eventually, the State legitimized the practice by creating new legislature and laws that kept information such as drug protocols and sources hidden from the public eye (Gibson and Lain 2015; Alper 2015). Although the State had good reason to hide this information, prisoners felt it was their right to know where the drugs used for their executions were coming from, especially considering that the Supreme Court case Baze v. Rees determined that the legality of lethal injection was based on the drugs used (Gibson and Lain 2015).
The last major effect the drug shortage had was on market prices. Since the drug shortage began, there has been a 1000% increase in the cost of drugs used for lethal injection (Pilkington 2021). As stated earlier, lethal injection was first used due to its significantly cheaper cost of only $10 per execution. However, after the shortage occurred and states began using whatever means necessary to obtain execution drugs, the price per execution increased dramatically. Because of this, Small Pharma firms were able to make a few thousand dollars by selling their drugs, rather than the few hundred dollars Big Pharma was previously making. According to the Guardian, Missouri purchased $160,000 worth of lethal injection drugs, and executed ten prisoners within a five-year gap, placing a hefty fee of $16,000 per execution on taxpayers (Pilkington 2021). In Tennessee, the price per execution averaged $100,000, and Arizona, despite having more than one million of its citizens struggling to feed themselves, decided to spend $1.5 million dollars on lethal injection drugs during the Covid-19 pandemic (Pilkington 2021). Because of new lethal injection procedures, states also faced unwieldy lawsuits and attorneys’ bills. For example, Nevada spent more than $100,000 defending itself in court against lawsuits in a two-year span (Pilkington 2021). Ultimately, the artificial drug shortage led to a massive financial burden on taxpayers due to the increased cost per execution and hefty fees from lawsuits.
Lastly, Big Pharma, by pulling out of the market, created an ideal situation to maximize profits and minimize loss. Second-order effects of the artificial drug shortage include the increased secrecy around states’ sources and a massive 1000% increase in the market cost of execution drugs. Theoretically, Big Pharma could now be providing states with drugs while taking none of the social rebound and making millions of dollars compared to the hundreds they were making before. Pharmaceutical giants, like Pfizer, have billions of dollars to spend on experts and market analysts who would be able to predict these secondary effects. Did Big Pharma really pull out of the market to take the moral high ground, or was this just one in a series of calculated steps to increase their profit margins? Either way, the current state of affairs sows seeds of doubt about the true intentions behind Big Pharma leaving the industry.
Big Pharma has stopped selling their execution drugs to states on the moral grounds that their companies were founded on the principles of providing therapies and improving the quality of their patients’ lives. Hence, it is morally wrong for them to let their drugs be used for lethal injection. By shaming the firms that sell these drugs, political activists also played a small role in companies’ decisions to leave the market. Big Pharma could also be using their stance against lethal injection to virtue signal, and thus convince the media and the public that they are politically correct. However, the same billion-dollar companies give most of their lobbying funds to the Republican Party, which ostentatiously promotes the death penalty. This clearly raises questions as to whether Big Pharma really opposes the death penalty, or if they have other motives for their actions. Pharmaceutical companies also have a financial incentive to leave the market to retain investors and their funds.
Big Pharma’s abandonment of the lethal injection drug market led to a number of negative second-order effects. First, states started to speed up their executions to use the drugs they had before they expired, leading to several states executing at rates never before seen in the 21st century. Because states lost practically any access to reliable, FDA-approved drugs and had to acquire drugs from unregulated compounding pharmacies, the number of botched executions increased dramatically due to less potent or contaminated drugs. The trial and error of new lethal injection procedures lead to several lawsuits against some states and a depressingly large number of cruel deaths faced by prisoners.
Some may question why it is the pharmaceutical companies’ moral responsibility to tend to the deaths of these prisoners since states are the ones performing the executions. The state is responsible for keeping its citizens safe, while pharmaceutical companies claim themselves responsible for the well-being and therapy of their patients. To enforce safety, United States federal law deems the death penalty a constitutional punishment. Whether this is morally permissible or not, this is the current reality.
I draw an analogy from this situation to the infamous trolley problem. In this case, the train tracks are the laws that allow for capital punishment, the trolley is the prison system filled with guards and wardens who must perform their jobs to survive and provide for their families, and Big Pharma is at the lever, deciding whether to get their hands dirty and provide humane deaths for prisoners or act as a bystander and watch states perform inhumane, horrific, and ultimately preventable executions. Although the State may be wrong for executing prisoners, Big Pharma is also wrong for denying prisoners access to a quick and humane death. They have the power to minimize the harm done by the State and are actively deciding not to do so, which is morally impermissible. Since the drug shortage began, the State has proceeded with death sentences as planned and has given no indication of banning capital punishment because of the lack of means, and hence Big Pharma should do the morally correct thing and supply states with the drugs they need to provide inmates with quick and humane executions.
When Big Pharma initially left the market, it did so under the cover of moral grounds. However, I have shown that their political actions call into question their real beliefs. Because Big Pharma stopped supplying the State with execution drugs, the number and inhumanity of the executions only seemed to increase. If drug companies are really founded on the principle of providing therapy, why are they refusing to do so for their patients on death row? It is morally impermissible for pharmaceutical companies to deny prisoners access to drugs that would lead to a humane death.
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