SOUTH BEND, Ind. (AP) — The maker of a drug Indiana wants
to use for its first execution since 2009 says the anesthetic, which
has never been used in lethal injections, isn’t approved for that
purpose and that it only recently learned of the state’s intentions.
Stephen
Mock, spokesman for Woodcliff Lake, New Jersey-based Par
Pharmaceutical, said Friday the company didn’t know Indiana had
purchased Brevital for use in an execution until seeing news reports
about it. He said the company is amending its distribution agreements to
state that the product should not be sold to departments of correction
but won’t try to stop Indiana from using the Brevital it already has.
Indiana
officials are standing by their decision to switch to Brevital because
of a shortage of sodium thiopental. They say the drug, a powerful
anesthetic used in hospitals for decades, is appropriate for an
execution.
"Brevital, the way we intend to use it, will do exactly
what it’s intended purpose is, which is to induce a deep, painless,
unconsciousness," Department of Correction spokesman Doug Garrison said
Friday.
Indiana’s switch to Brevital, also known as methohexital
sodium, as part of its three-drug lethal injection series is its first
change in execution protocol since it stopped using the electric chair
in 1995.
The move comes amid increased scrutiny of lethal
injection drugs. Drug makers have begun refusing to sell their products
for use in executions, and condemned men in Ohio and Oklahoma took an
unusually long time to die after being injected with different drug
combinations.
"It sounds to me like Indiana intends to experiment
with some new drug and see what happens, and that concerns me greatly,"
said Steve Schutte, an attorney representing Michael Dean Overstreet,
who is expected to be the next inmate executed in Indiana.
The use
of Brevital was successfully challenged in Oklahoma in 2010 by a lawyer
who contended it was experimental and might lead to a "torturous"
death. Par Pharmaceutical issued a statement this week saying Brevital
is "intended to be used as an anesthetic in life-sustaining procedures"
and that Indiana’s planned use of it in an execution "is inconsistent
with its medical indications as outlined in its U.S. Food and Drug
Administration reviewed and approved product labeling."
Garrison
said the state is confident that its drug protocol will work. He said
Indiana State Prison Superintendent Bill Wilson selected Brevital as a
replacement for sodium thiopental after consulting with "with
pharmacists, other states and other experts."
Garrison said the state has enough of the drug on hand to carry out an execution but declined to
elaborate.
Indiana
has not executed an inmate since Dec. 11, 2009, the longest gap in
death sentences in the state since 1994. State officials say the delay
is the result of cases working their way through the courts.
State
law doesn’t specify what drugs are to be used for executions, saying
only that the drugs must be injected intravenously in a quantity and for
an amount of time sufficient to kill the inmate.
Garrison said sodium thiopental and Brevital have similar properties and both cause "deep
unconsciousness."
Schutte said Garrison is downplaying the significance of the change.
"If
it was as simple as exchanging one drug for another, that’s what every
other state would have been doing instead of scrambling around trying to
decide how to salvage their lethal injection schemes," he said.
The
National Institutes of Health website describes Brevital as a rapid,
ultrashort-acting barbiturate anesthetic that is at least twice as
potent on a weight basis as thiopental and lasts only about half as
long. Its warning label says it should be used only in hospital or
ambulatory care settings that provide for continuous monitoring of
respiratory and cardiac function.
Oklahoma announced in 2010 it
would use Brevital to execute Jeffrey David Matthews on the day before
his scheduled execution. A federal public defender forced a delay by
arguing Brevital had never been used in an execution and the state’s new
procedure was "untested, potentially dangerous and could very well
result in a torturous execution."
No ruling on the drug was ever
made, however, because the state obtained pentobarbital and used it in
Matthews’ Jan. 11, 2011, execution.
Though 18 states have changed
their execution protocols in the past four years because of shortages in
traditional lethal injection drugs, no state has yet used Brevital,
according to the Death Penalty Information Center.
Joseph
Hoffmann, an Indiana University law professor, doesn’t think that fact
would affect Overstreet’s case, though he said the issues in Ohio and
Oklahoma could make courts "a little more focused" on lethal injection
protocols than they would have been previously.
"I still think, at
the end of the day, the odds are very much in the states’ favor that
their methods are going to be upheld," he said.
Schutte,
Overstreet’s attorney, is focused for now on arguing that Overstreet is a
paranoid schizophrenic and isn’t mentally competent to be executed for
the 1997 rape and murder of Franklin College freshman Kelly Eckart. A
ruling is expected by the end of the year.