On Tuesday, Nebraska executed a man with a previously untested four-drug cocktail that included, controversially, fentanyl. Before that execution could happen, the state and a drug company went to court – eventually, the court sided with the state, but the litigation is indicative of a growing divide between companies that make the drugs used for lethal injections and states that use those drugs in executions. Nebraska’s execution is just the latest example of how this battle is playing out — and its consequences.
So, how did Nebraska end up killing someone with the same drug that it has also spent millions to prevent its residents from overdosing on? Fentanyl, of course, is a synthetic opioid that resulted in more than 29,000 overdose deaths in the U.S. in 2017 alone.
Part of the answer is that more traditional drugs used in lethal injections have become increasingly difficult to obtain. Drug companies don’t want their drugs used in the business of killing and have worked hard to limit state access to those substances if they will be used in executions.
As evidenced by the lawsuit brought by a drug company against the state of Nebraska, even companies producing drugs that weren’t associated with botched lethal injections are wary of states using them for executions.
Fresenius Kabi, the drug company, filed a lawsuit in federal court, accusing Nebraska of illegally obtaining drugs to be used in Tuesdays execution arguing that two of its products were slated to be in the execution cocktail. Last week, a judge ruled against Fresenius Kabi, which did not appeal the ruling. Nebraska did not release where it had sourced the drugs used from.
In Nevada, a similar court battle between the state and drug company Alvogen is ongoing with the state being accused of illegally obtaining the sedative it plans to use in an execution cocktail that also contains fentanyl.
The story behind these lawsuits is the same: The companies that make the drugs don’t want to be involved in killing people — likely because such an affiliation is terrible for public relations. Even the fact that the unsuccessful lawsuits were brought in the first place points to how companies have been successful in targeting lethal injections.
Indeed, the reason these states were looking to previously unused drugs was that the drugs that had previously been used were difficult or impossible to obtain, forcing states to look elsewhere.
This is still a problem — in Nebraska, there was a rush to prevent further objections as the state’s supply of one of the drugs to be used was set to expire at the end of the month and officials said they would be unable to obtain a new supply.
As evidenced by the legal wrangling and search for new drugs, companies are increasingly at odds with states. Given that drug companies control the supply of drugs, they then hold considerable control over the use of lethal injections. If states fail to find workarounds, then they maybe be faced with finding alternative ways to carry out executions.
Some states like Oklahoma have sought to use the untested method of execution by nitrogen gas. The last time an inmate was executed by a gas chamber in the U.S. was in 1999 — then, it was an agonizing process where the hydrogen cyanide caused coughing and hacking, with death coming only after 18 minutes. (Backers of nitrogen gas argue that it is a much more humane option.)
In Utah, they have decided on another backup option if the state can’t get the drugs they want: the age-old option of lining up a firing squad.
As drug company objections make lethal injection an increasingly difficult option for states bent on executing inmates, the bad optics of alternative methods, like firing squads, may finally give some Americans pause in supporting the death penalty.
Americans are, after all, a funny lot. Few who defend the death penalty would be in a favor of Saudi-style beheadings.
