HELENA — A recent court ruling limits Montana to using one of three drugs in its lethal injections, but those drugs are either not made in the U.S., are barred from being imported or the manufacturer refuses to sell the drug for executions.
That leaves few options for the state to execute either of its two death-row inmates following District Judge Jeffrey Sherlock’s ruling on Tuesday. If the state is unable to obtain any of the three drugs, it won’t be able to carry out executions unless the Legislature changes state law in 2017 or the Montana Supreme Court overturns the Helena judge’s decision on appeal.
“Essentially, the pharmaceutical companies don’t want to be associated with executions,” Death Penalty Information Center Executive Director Robert Dunham said Wednesday. “They have said their corporate mission is to save lives, not take lives.”
Montana law requires that lethal injections be administered by an “ultra-fast acting barbiturate” in combination with a chemical paralytic agent. Death-row inmates Ronald Allen Smith and William Gollehon filed a legal challenge to the state’s plan to use the barbiturate pentobarbital, arguing that the drug does not meet the “ultra-fast acting” standard.
Sherlock determined that medical evidence shows only three barbiturates can be classified as ultra-fast acting: thiopental, thiamylal and methohexital. His ruling barred pentobarbital, the drug being used by several other death-penalty states.
Thiopental, also known as sodium pentothal, was the Montana Department of Corrections’ first choice for executions. But the drug is no longer manufactured in the U.S., and the European Union in 2011 banned manufacturers from exporting the drug for use in executions.
The drug also is made in India, but none of those manufacturers have Food and Drug Administration approval, said Maya Foa of Reprieve, a British advocacy organization. “That means it would be unlawful for them to import this drug into the U.S., no matter what the purpose,” Foa said.
Thiamylal is no longer made in the U.S. The drug is manufactured in Japan, though those versions do not appear on the list of FDA-approved drugs and pharmacists and doctors know of no attempts to import it for use in executions.
“It’s not available, it hasn’t been used and, as far as I know, no one’s contemplated using it,” said Dr. Mark Heath, an anesthesiologist for Columbia University.
Sherrill Brown, director of the University of Montana pharmacy school’s drug information service, said if importing the drug from Japan were an option, states would likely be already doing it.
The third drug, methohexital, is manufactured in the U.S. under the name Brevital. Par Sterile Products stopped selling Brevital to state corrections agencies last year after Indiana officials said they wanted to use it in an execution.
“Any proposed us of Brevital to conduct lethal injections is contrary to our mission,” said Keri Mattox, spokeswoman for Endo, Par’s parent company. “We therefore support wholesaler controls intended to preclude acceptance of Brevital orders from departments of corrections.”
Some states have used compounding pharmacies to make copies of pentobarbital. That could be an option for Montana to obtain one of the three drugs, though it may be a challenge finding a compounding pharmacy to do it, Brown said.
Tim Calcagno, owner of Montana Compounding Pharmacy in Missoula, said neither of his two chemical suppliers lists the three drugs for sale and he would not know how to re-create the drugs if asked.
“They are not typical compounding products,” he said.
Montana could try to buy the drug from other states with existing supplies, Dunham said.
“Are their drugs available from other states? We don’t know. If they are, we don’t know when they expire, we don’t know if they were appropriately manufactured, we don’t know if they were obtained in violation of the law or in breach of contract,” Dunham said.
Montana Department of Corrections spokeswoman Judy Beck did not return calls for comment on Wednesday.