California considers making its own lethal drugs for the death penalty

Under new rules proposed by the California Department of Corrections and Rehabilitation, prison officials would be allowed to manufacture barbituates to carry out the death penalty at its own compounding pharmacies, immunizing prison officials from the growing problem of pharmaceutical companies refusing to sell lethal drugs for the purpose of killing the condemned.

Last week, pharmaceutical giant Pfizer announced it would no longer allow states to buy its drugs to put people to death. Pfizer’s decision won’t affect California because it does not manufacture the four drugs prison officials propose to use in the new regime now under consideration.

The plan would allow prison authorities to use one of four barbiturates for lethal injection: amobarbital, pentobarbital, secobarbital and thiopental.

Amid court challenges to lethal injection and a shortage of drugs, the state hasn’t executed anyone in more than a decade.

CDCR spokeswoman Terry Thornton declined to comment on Pfizer’s decision – nor that of other companies now refusing to sell the barbituates California would need. But she pointed out language in the current proposal that lays out the department’s options, which include sidestepping the big drug companies altogether.

“California law requires that state resources be utilized when available before contracting with private sources for good or services is permitted. CDCR has compounding pharmacies,” the proposal states. It goes on to say if the department cannot compound the chemical, it is “permitted to contract with a private non-state compound pharmacy.”

Unlike regular pharmacies that sell major label drugs, compounding pharmacies manufacture their own drugs, often in doses designed for individual patients.

The state prison system indeed has its own pharmacies that are licensed to produce “sterile and injectable drugs,” said Megan McCracken, a law professor at the death penalty clinic at the Berkeley School of Law. That would include the barbituates California wants to use.

But prison officials have been vague about how that would work and whether they would also use private compounding pharmacies, said McCracken. While such pharmacies are less regulated than big drug companies, they must follow certain guidelines.

They are prohibited from simply copying barbituates and other drugs already on the market, she said. They also require the pre-existence of a doctor patient relationship, a patient with a particularized need, and a prescription for the specific compound from the doctor.

“Do doctors want to write these prescriptions that are putting their patients to death?” asked McCracken, who does not take a position on the death penalty.

Texas, Georgia and Missouri already use a one drug procedure by injecting compounded pentobarbital. It’s unclear if they make it at prison pharmacies or use private companies, said McCracken, because states are increasingly secretive about how they are getting their lethal injection drugs.

Another concern with compounded drugs is their quality.

“There is a higher risk the dose will be wrong,” said Anna Zamora of the American Civil Liberties Union of Northern California, which opposes the death penalty. “At the end of the day, my biggest concern is botched executions in California.”

Supporters of the death penalty are equally frustrated with drugs companies refusing to sell the drugs needed to carry out lethal injections, and support the state's effort to get the drugs in other ways.

“This is an ongoing debate across America and I don’t want to argue with the companies over whether its proper,” said San Bernardino District Attorney Mike Ramos. “’It’s their company.”

“The biggest frustration for me is the victim. They deserve justice,” said Ramos, who chairs the campaign for a November ballot initiative designed to speed executions in California.

A second initiative expected to appear on the ballot would eliminate the death penalty in California.

In the meantime, the Department of Corrections and Rehabilitation continues to take public comment on its proposed regulations through July 11. By law, the department must consider and respond to each comment. Prison officials could chose to change the proposed regulations based on the comments.