Health Care Workers Ask States to Hand Over Death Penalty Drugs Needed to Fight COVID-19 Pandemic

According to research by Dr. Joel Zivot and his fellow signatories, the amount of death penalty drugs currently stockpiled in states that disclose this information could be used to treat around 137 COVID-19 patients. Moussa81/Getty

A group of doctors, pharmacists and front-line medical workers have published an open letter to state prison systems, calling on administrators to hand over drugs used for capital punishment that are also critical in the fight against COVID-19.

Many of the pain relievers, sedatives and paralytics that are used in lethal injection protocols are the same drugs needed to calm patients in order to attach them to a ventilator, which requires intubation.

"These medicines were never made or developed to cause death – to the contrary, many were formulated to connect patients to life‐saving ventilators and lessen the discomfort of intubation," the letter states.

The availability of midazolam, a commonly used sedative that is also part of some death penalty protocols, is currently facing several shortages, according to the American Society of Hospital Pharmacists (ASHP), an industry association that regularly communicates with manufacturers. Supplies of the drug from the firms Akorn and Fresenius Kabi are facing shortages "due to increased demand." The pharmaceutical giant Pfizer is experiencing manufacturing delays.

Fentanyl citrate, an opioid that the Justice Department had reportedly considered when resurrecting the federal death penalty and one that is used in Nebraska's cocktail, is also facing shortages, according to the Food and Drug Administration.

These drugs are among several medications that may be in the hands of state correctional programs—notorious for shrouding their lethal injection protocols in secrecy—that health care workers are finding it increasingly difficult to procure on the front lines of the COVID-19 outbreak.

"The patient volume is unprecedented. We are trying to do the best we can for as many people as we can," Dr. Joel Zivot, an associate professor of anesthesiology who signed on to the letter in his personal capacity, told Newsweek. "All of the supplies that would normally be in place are being stretched thin. I think all of us are trying very hard to make do with what we've got, to use what we have in the best possible way. But everything is needed."

According to research by Zivot and his fellow signatories, nine in total, the volume of drugs currently stockpiled in at least three states that disclose this information could be used to treat around 137 patients.

But the health care professionals believe that, when combined with inventory from other states that may have comparable supplies, "potentially hundreds" of patients suffering from COVID-19 could stand to benefit.

Zivot does not believe that medicine should "be used as an arm of state punishment." However, he says his aim in drafting the letter is not to impair the readiness of the death penalty but to merely help as many patients as possible.

Reports in recent years of botched executions and mounting public pressure to abolish the death penalty have sent states scrambling to procure the necessary drugs or to retool their lethal injection protocols.

Many manufacturers have sworn against supplying states with any drugs that will be used for capital punishment.

According to the Death Penalty Information Center, 28 states allow for capital punishment, however governors in three of these states—California, Oregon and Pennsylvania—have imposed moratoria on the practice.

In July 2019, the Justice Department announced it would move to re-establish the death penalty in federal cases for the first time in nearly two decades.

In this handout photo, San Quentin's lethal injection facility is shown before being dismantled at San Quentin State Prison on March 13, 2019, in San Quentin, California. California Governor Gavin Newsom announced a moratorium on the state's death penalty. California Department of Corrections and Rehabilitation/Getty

Because of the narrowing pathways for obtaining death penalty drugs, some states have turned to underhanded practices to conduct transactions out of the public eye.

For example, in 2014, George Lombardi, then the director of Missouri's Department of Corrections, testified at an oversight hearing that the state sends a department employee over the border into neighboring Oklahoma to procure pentobarbital, a sedative, in an all-cash deal.

BuzzFeed News has reported that as recently as 2018, Texas has been procuring its supply of lethal injection drugs from a compounding pharmacy whose license had been on probation and that was previously cited for safety violations.

That the integrity of drugs in states' hands would be unreliable is a concern, but Zivot says that states should disclose "if what they have is expired or of low quality."

So far, the only state to have responded to the open letter is Wyoming, which provides for capital punishment but has not executed an inmate since 1992. In 2014, the state's lone death row inmate had his sentence overturned. Zivot says that Wyoming told him it did not have any of the relevant drugs in its possession.

States seeking to comply in good faith with Zivot's request may be asked to disclose whether they have engaged in unsavory drug-procurement practices. In many states, this information is deemed confidential by law, so as to protect secret supply chains. Furthermore, once states remove death penalty drugs from their inventory, they may face enormous hurdles restocking their supply.

"The public has an expectation that the issue will never be one of supply, that supply will always be there," Zivot explained about the health care industry's ability to respond to the COVID-19 outbreak. "Let us do our job in an unencumbered way. Because there are already encumbrances that have occurred, tragically, as a result of the enormity of this problem."