The final words of two condemned men have placed Oklahoma at the forefront of the national debate over capital punishment and the constitutionality of the drugs used in lethal injections.
On Jan. 9, Michael Lee Wilson, 38, was put to death for participating in the 1995 murder of Tulsa store clerk Richard Yost. Shortly after the drugs began to flow into Wilson's body, he expressed love to his family and the world. After a short pause he gave his final words: “I feel my whole body burning.” Seconds later he was dead.
On Jan. 23, Kenneth Eugene Hogan said he had a metallic taste in his mouth as he was executed for stabbing to death a college student in Oklahoma City.
Could the statements by Wilson and Hogan indicate a problem with the three-drug cocktail used to carry out executions in Oklahoma and other states, or violate constitutional protection against cruel or unusual punishment?
Wilson's last words were cited in a lawsuit brought against the Missouri Department of Corrections by death row prisoners seeking basic information about the pentobarbital intended for use in their executions.
Pentobarbital is a barbiturate used in the execution process to render the condemned person unconscious. Another drug paralyzes the person and a third stops the heart.
Lundbeck, the Danish company that makes pentobarbital, is no longer distributing it to states that conduct executions, saying this is a “distressing misuse of our product.”
Redacted documents from the Missouri Department of Corrections revealed the state was acquiring pentobarbital from a business in Oklahoma, and the records pointed to three possible pharmacies. The Apothecary Shoppe, a compounding pharmacy with locations in Tulsa and Broken Arrow, was one of the three, and similar documents from the Louisiana Department of Corrections show the shop was also in correspondence with them.
Questions arose about the legality of a pharmacy not licensed in Missouri providing the state with drugs for lethal injection purposes. Cindy Hamilton, chief compliance officer for the Oklahoma State Board of Pharmacy, told The Tulsa World no state laws were violated because officials from Missouri drove to Oklahoma to obtain the drug.
Sarah Lees, spokeswoman for the Apothecary Shoppe, said once the business was sold to its employees it went through the process of reapplying for licensure in surrounding states, including Missouri, Texas, Arkansas and Kansas. She said it is possible the pharmacy also applied for licensure in Louisiana, but she could not confirm that.
Lees also declined to comment on whether or not the business compounds or sells pentobarbital.
Compound drug safety
Compounding pharmacies mix or alter drugs mainly for individual purposes, such as removing a particular ingredient a patient may be allergic to or creating a liquid form of a pill for children.
While compounding pharmacies are required to be licensed by the state in which they practice, they do not have to register with the U.S. Food and Drug Administration, nor do their products have to be approved or tested by the FDA.
“Basically, we don't know A) what the drugs could possibly be contaminated with and B) we don't really know if they're produced at the concentrations and things that we would expect to have from FDA approved drugs,” said Jen Moreno, staff attorney at the UC Berkeley Law Death Penalty Clinic. “That's really the troubling aspect of using compounded drugs, is that you don't really know until you have information what you're actually getting or using.”
In 2012, federal health officials said 64 people died and 686 others were sickened by steroids cleared by Oklahoma City-based Analytical Research Laboratories for a New England compounding pharmacy.
On Thursday, a colleague of Moreno's, Eighth Amendment Resource Counsel for the UC Berkeley School of Law's Death Penalty Clinic Megan McCracken, filed a lawsuit against the Oklahoma Department of Corrections for not promptly responding to a Jan. 1 open records request asking for, among other things, drug chain of custody documents, correspondences with pharmacies, and any records or documents regarding the manufacturers and distributors of any drugs used for the purpose of execution.
“What we know about Oklahoma is that we really don't know very much,” Moreno said.
“It's probably one of the states where we get the least amounts of information about what they're doing.”
According to Oklahoma statute, “The identity of all persons who participate in or administer the execution process and persons who supply the drugs, medical supplies or medical equipment for the execution shall be confidential and shall not be subject to discovery in any civil or criminal proceedings.”
Death penalty experts like Moreno argue the use of pharmacies that are not federally regulated raises moral and ethical questions about the lethal injection process in America. She said in order to determine that pharmacies used by state corrections departments adhere to quality standards it is important states be as transparent as possible.
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