State-by-State
Risk Index

Since 2013, and despite the lack of a formal secrecy law, the Alabama DOC has maintained the position that all information related to execution matters, including the source of its lethal injection products, is confidential and outside the purview of public records requests. Alabama’s secrecy policy is one of the strictest in the US, making all documents associated with an execution confidential, and public records surveys reveal that the DOC uses this policy to justify refusing to provide any records related to executions, regardless of content.

This policy creates a significant burden for companies seeking to effectively monitor the supply chain for restricted medicines and to ensure that their distribution restrictions are working effectively. Since 2018, the Alabama DOC has disclosed its redacted execution protocol on several occasions, in response to litigation, although this does not reveal any information about the drug supplies.

Affected companies oppose secrecy and the misuse of medicines in executions. These companies have sent numerous letters to the Office of the Governor, the Attorney General, and the Head of the DOC in Alabama, asking that their efforts and intentions be respected. Akorn Pharmaceuticals, for example, wrote to the DOC in 2015, asking it to confirm if it had purchased Akorn products against Akorn’s wishes, writing, “If [Alabama] prisons have purchased Akorn products directly or indirectly for use in capital punishment we ask that you immediately return our products for a full refund.”

On November 21, 2022, Alabama announced that all executions in the state will be halted pending a top to bottom review of the state’s execution protocol. This was the first time in the state’s history that a review of this nature had been proposed and followed a spate of botched executions.

However, on January 16, 2023, Alabama Supreme Court approved changes to the state's procedures to extend the time period during which an execution can be carried out to 30 days - indicating that the state was preparing to resume executions.

Indeed, in 2023, Alabama executed two individuals via lethal injection. In so doing, Alabama officials may have knowingly and deliberately undermined the contractual restrictions that companies have established to prevent the sale of their drugs to death rows.

Arizona’s secrecy law has been effective since 2008. Arizona Revised Statutes § 13-757 makes the identity of “persons who participate or perform ancillary functions in an execution” confidential. The Arizona DOC has interpreted this provision to apply to all information related to the suppliers and manufacturers of drugs intended for use in executions, as well as the specifics about the drugs themselves.

This law creates a significant burden for companies seeking to effectively monitor the supply chain for restricted medicines and to ensure that their distribution restrictions are working effectively.

Affected companies oppose secrecy and the misuse of medicines in executions. These companies have written directly to the Arizona DOC expressing this position. For example, in 2011 Arizona adopted a one-drug execution protocol using pentobarbital. Later that year the only licensed supplier of pentobarbital in the United States, Lundbeck A/S, implemented measures to ensure that its products would not be distributed to prisons for the purposes of carrying out executions, noting that “Lundbeck adamantly opposes the distressing misuse of our product in capital punishment.”

An investigation overseen at Emory University hospital in Atlanta found that Arizona was among a handful of states stockpiling execution drugs that are in short supply and which would otherwise be used collectively to treat more than 11,000 US patients in life-or-death procedures. Many of the drugs used in executions are listed on the World Health Organization’s Model List of Essential Medicines, which presents the minimum needs for a basic healthcare system, but are in dangerously short supply in the United States today.

Drug manufacturers Fresenius Kabi LLC and West-Ward Pharmaceuticals Corp. have raised concerns around the public health impact of these practices, noting that “[t]he use of the medicines for lethal injections creates a public-health risk by undermining the safety and supply of lifesaving medicines.”

On January 20 2023, Governor Katie Hobbs ordered a review of the state's method of execution, effectively pausing executions in Arizona in a bid to foster improved transparency, accountability and safety over the execution process. Although this announcement temporarily reduces the risk to pharmaceutical companies, Arizona has a history of attempting to secure drugs under the cover of secrecy.

Arkansas Code § 5-4-617 specifies that “[d]ocuments, records, or information that may identify or reasonably lead directly or indirectly to the identification of an entity or person who compounds, synthesizes, tests, sells, or supplies, manufactures, transports, procures, dispenses, or prescribes” the drug(s), medical supplies, or medical equipment to be used in executions are to remain confidential. “A person who recklessly discloses” confidential information under the statute “is guilty of a Class D felony,” punishable by up to six years imprisonment and a $10,000 fine.

This law creates a significant burden — and creates risk of criminal punishment — for companies seeking to effectively monitor the supply chain for restricted medicines and to ensure that their distribution restrictions are working effectively.

Although Arkansas’ statute previously permitted certain information related to the manufacturers of its drug supplies be released in redacted form,” in practice, the DOC refused to disclose redacted package inserts and labels. In 2017, a circuit judge ordered the DOC to disclose these records after the DOC improperly refused to do so, and the Arkansas Supreme Court upheld the decision. In 2019, the Arkansas legislature amended the secrecy law to prohibit even this limited disclosure of information related to drug supplies.

In April 2017, reports indicated that Arkansas had circumvented company contracts and agreements, and obtained products whose use had been restricted. Affected companies wrote to Arkansas officials informing them of the existence of contractual supply-chain controls, and when it emerged that these controls had been violated, seeking the return of their products. The state refused to disclose to the companies whether and how it had obtained their products, citing its secrecy law.

Healthcare company McKesson Corporation conducted a detailed review and discovered that state officials had obtained its products through “false pretense, trickery, and bad faith,” intentionally obscuring the drugs’ intended purpose and reneging on a promise to return them after a refund was provided. After officials refused to return its products, McKesson Corporation took legal action against the Arkansas DOC seeking their return. West-Ward Pharmaceuticals Corp. and Fresenius Kabi LLC, two other companies that were affected, also filed a joint amicus brief in the suit.

An investigation overseen at Emory University hospital in Atlanta found that Arkansas was among a handful of states stockpiling execution drugs that are in short supply and which would otherwise be used collectively to treat more than 11,000 US patients in life-or-death procedures. Many of the drugs used in executions are listed on the World Health Organization’s Model List of Essential Medicines, which presents the minimum needs for a basic healthcare system, but are in dangerously short supply in the United States today.

Drug manufacturers Fresenius Kabi LLC and West-Ward Pharmaceuticals Corp. have raised concerns around the public health impact of these practices, noting that “[t]he use of the medicines for lethal injections creates a public-health risk by undermining the safety and supply of lifesaving medicines.”

Despite repeated requests from pharmaceutical companies that their medicines not be diverted for use in capital punishment, Arkansas has pressed ahead in its efforts to secure these firms’ products under the cover of a sweeping secrecy law. In so doing, Arkansas officials may be continuing to knowingly and deliberately undermine the contractual restrictions that companies have established to prevent the sale of their drugs to death rows.

Congress has not enacted secrecy legislation directly addressing the confidentiality of the identities of entities or persons involved in the manufacture or supply of drugs intended for use in lethal injections. Nonetheless, since the Department of Justice’s (DOJ) July 2019 announcement of its plans to resume lethal injection executions for the first time in more than fifteen years, DOJ has implemented a de facto secrecy policy. This secrecy policy has been revealed in ongoing litigation challenging the federal execution protocol, investigative reports, and responses to congressional inquiries.

When a group of death row inmates challenged DOJ’s adoption of a new execution protocol, DOJ was required to produce a record of the materials it consulted and relied on in developing the protocol. In producing that “administrative record,” however, DOJ refused to disclose information related to persons or entities involved in manufacturing, supplying, compounding, or testing the drugs acquired for use in executions. Instead, DOJ redacted that information from relevant records in its public filings, leaving the inmates and the public in the dark on critical issues concerning the drug supply.

Investigations into the federal government’s pursuit of drugs for use in executions likewise indicate that it used the cover of secrecy to sidestep company interests. One journalist described DOJ’s process as “a three-year campaign to line up a secret supply chain” and reported that secrecy permitted DOJ to obtain tests from a laboratory that had a specific policy against testing drugs intended for use in lethal injections. After learning that it had unintentionally tested drugs for use in executions, that company took measures to combat secrecy by announcing it would require clients to disclose the intended use of medicines submitted for testing.

DOJ’s de facto secrecy policy is not just limited to the public and potentially affected companies. DOJ has also refused to disclose relevant information to Congress. As part of an investigation into the decision to resume executions, the Subcommittee on Civil Rights and Civil Liberties of the House Committee on Oversight and Reform requested information from DOJ related to the supplies of the drugs it acquired for use in executions. DOJ, however, “refused to produce the requested documents.”

On July 1, 2021, Attorney General of the United States Merrick Garland issued a memorandum formally pausing federal executions, while the Department of Justice undertakes a review of executive branch policies adopted in the last two years of the Trump administration. This will include a review of the Addendum to the Federal Execution Protocol, adopted in 2019, and will assess, among other things, the risk of pain and suffering associated with the use of pentobarbital. Nevertheless, DOJ’s policy creates a significant burden for companies seeking to effectively monitor the supply chain for restricted medicines and to ensure that their distribution restrictions are working effectively.

Florida Statutes § 945.10, originally enacted in 2000, makes “[i]nformation which identifies an executioner, or any person prescribing, preparing, compounding, dispensing, or administering a lethal injection” secret. Another provision of that section makes “information which if released would jeopardize a person’s safety” confidential.

In 2022, Florida amended the statute, broadening its scope to explicitly include manufacturers and to make the confidentiality provisions retroactive. Now, the following is deemed to be confidential: “Information or records that identify or could reasonably lead to the identification of any person or entity that participates in, has participated in, or will participate in an execution, including persons or entities administering, compounding, dispensing, distributing, maintaining, manufacturing, ordering, preparing, prescribing, providing, purchasing, or supplying drugs, chemicals, supplies, or equipment necessary to conduct an execution…”

This law creates a significant burden for companies seeking to effectively monitor the supply chain for restricted medicines and to ensure that their distribution restrictions are working effectively.

Affected companies oppose secrecy and the misuse of medicines in executions. These companies have sent numerous letters to the Office of the Governor, the Attorney General, and the Head of the DOC, asking that their efforts and intentions be respected. In October 2015, Fresenius Kabi LLC wrote to Florida Governor Rick Scott seeking the return of its medicines. The company wrote, “[w]e are asking for the return of our potassium chloride as we wish to avoid the potential harm to patients caused by shortages . . . .” The distributor of the drug also reached out to Florida, seeking the return of the product.

In July 2016 and February 2017, Pfizer, Inc. wrote to the Florida DOC to inform it of the restriction of a number of Pfizer products in its “Corporate Policy for Use of Our Products in Lethal Injections for Capital Punishment.” Pfizer, Inc. also circulated its position on the use of products in lethal injections, which states “Pfizer strongly objects to the use of its products as lethal injections for capital punishment . . . Pfizer will consistently monitor the distribution of these seven products, act upon findings that reveal noncompliance, and modify policies when necessary to remain consistent with our stated position against the improper use of our products in lethal injections.”

Amidst the 2020 COVID-19 pandemic, several leading medical and public health professionals wrote to state DOCs, including Florida’s, to ask for the release of drugs stockpiled for lethal injection. While acknowledging many states hide information on their drug supplies through secrecy laws, the authors gleaned through the limited information publicly available that the drugs in Florida’s stockpile — likely obtained in violation of company controls — could be used to treat at least 100 COVID-19 patients.

Despite repeated requests from pharmaceutical companies that their medicines not be diverted for use in capital punishment, Florida has pressed ahead in its efforts to secure these firms’ products under the cover of a sweeping secrecy law. In so doing, Florida officials may be knowingly and deliberately undermining the contractual restrictions that these companies have established to prevent the sale of their drugs to death rows.

Georgia Code § 42-5-36, passed in 2013, labels the following information as a “confidential state secret”: “identifying information of any person or entity who participates in or administers the execution of a death sentence . . . [or] manufactures, supplies, compounds, or prescribes the drugs, medical supplies, or medical equipment utilized in the execution of a death sentence.” Identifying information is broadly defined as “any records or information that reveals a name, residential or business address, residential or business telephone number, day and month of birth, social security number, or professional qualifications.” In 2021, the legislature amended the secrecy law to add a criminal penalty for unlawful disclosure, which under the statute is now classified as a misdemeanor, punishable by a fine of up to $1,000 and up to one year in jail.

This law creates a significant burden for companies seeking to effectively monitor the supply chain for restricted medicines and to ensure that their distribution restrictions are working effectively.

The companies that make the medicines listed in Georgia’s lethal injection protocol oppose secrecy and the misuse of medicines in executions. These companies have written directly to the Georgia DOC expressing this position. For example, in 2011, Georgia adopted a one-drug execution protocol using pentobarbital. However, later that year, the only licensed supplier of pentobarbital in the United States, Lundbeck A/S, implemented measures to ensure that its products would not be distributed to prisons for the purposes of carrying out executions, and wrote to the Georgia DOC that the use of its medicines in executions “contradicts everything we are in business to do – provide therapies that improve people’s lives.”

In 2022, Idaho enacted execution secrecy legislation. Idaho Code Ann. § 19-2716A states that: “the identities of any of the following persons or entities involved in the planning, training, or performance of an execution shall be confidential, shall not be subject to disclosure, and shall not be admissible as evidence or discoverable in any proceeding before any court, tribunal, board, agency, or person: (a) The on-site physician and any member of the escort team or medical team; and (b) Any person or entity who compounds, synthesizes, tests, sells, supplies, manufactures, stores, transports, procures, dispenses, or prescribes the chemicals or substances for use in an execution or that provides the medical supplies or medical equipment for the execution process.”

The secrecy provision also exempts these people from the state’s controlled substance laws and laws and regulations governing the practice of medicine. Prior to the passage of the secrecy law, Idaho relied on a DOC regulation to conceal execution-related records from public disclosure. The Idaho DOC also amended Rule 135 in 2022 to conceal information relating to suppliers of lethal injection drugs.

This law hides the identities of the manufacturers who are classed as being involved in the “planning, training or performance of an execution”. It encourages state officials to secretly and illicitly purchase these medicines without companies’ knowledge or consent. This law creates a significant burden for companies seeking to effectively monitor the supply chain for restricted medicines and ensure that distribution restrictions are working effectively.

The companies that make the medicines listed in Idaho’s execution protocol oppose secrecy and the misuse of medicines in executions. These companies have written directly to the Idaho DOC expressing this position. For example, in 2016 and 2017, Pfizer, Inc. wrote to the Idaho DOC, stating “Pfizer makes its products solely to enhance and save the lives of the patients we serve ... [and] strongly objects to the use of any of our products in the lethal injection process for capital punishment.”

Manufactured drugs have been implicated in at least one high profile botched execution in Idaho. In February 2024, Thomas Creech's execution was halted due to problems administering the lethal injection. IDOC officials acquired the drugs using illicit channels and refused to disclose key information that would have allowed manufacturers to protect their medicines.

In July 2017, Indiana implemented an expansive and retroactive secrecy statute. Indiana Code § 35-38-6-1 makes “[t]he identity of a person” that enters into a contract for “the issuance or compounding of” drugs for use in lethal injections, as well as “[i]nformation reasonably calculated to lead to the identity of” such a person confidential. This language was included in the 2017 state budget bill without opportunity for debate. Indiana’s law further limits scrutiny of the supply chains for drugs intended for use in lethal injections by exempting suppliers from pharmacy and health laws.

Indiana’s secrecy law creates a significant burden for companies seeking to effectively monitor the supply chain for restricted medicines and to ensure that their distribution restrictions are working effectively.

Affected companies oppose this law and the misuse of their medicines in executions. In May 2014, shortly after Indiana had acquired supplies of Par Pharmaceutical, Inc.’s Brevital for use in executions, the company quickly implemented distribution controls and put out a statement, writing that “As a pharmaceutical company, Par’s mission is to help improve the quality of life. The state of Indiana’s proposed use is contrary to our mission. Par is working with its distribution partners to establish distribution controls on Brevital to preclude wholesalers from accepting orders from departments of correction.”

In an affidavit filed in Indiana court in February 2018, professor of surgery Dr. Leonidas George Koniaris wrote that based on his research, “[a]ll of the companies approved by FDA to manufacture the drugs named in Indiana’s lethal injection protocol publicly oppose the misuse of their medicines in lethal injections, and have entered into agreements with wholesalers to prevent the sale of their medicines to [DOCs] for this purpose.”

In March 2024, Louisiana passed a far-reaching secrecy statute that comes into force on July 1, 2024.

Sections 15:569 and 15:570 of the Revised Statutes of Louisiana will mandate that “identifying information” relating to “any person, business, organization, or other entity directly or indirectly involved” in an execution is subject to “absolute confidentiality.” This includes “any person who participates or performs ancillary functions in the execution process” including a business that "delivers, dispenses, distributes, supplies, manufactures, or compounds the drugs." Moreover, secrecy extends not just to directly identifying information but more broadly to “records that…could reasonably lead to the identification” of a participant in an execution.

Identifying information may not be disclosed in judicial, legislative, or administrative proceedings. A person or entity whose identity is disclosed has a civil right of action for damages, including punitive damages in case of willful disclosure.

This law creates a significant burden for companies seeking to effectively monitor the supply chain for restricted medicines. On the face of the statute, companies seeking to comply with regulatory reporting obligations or enforce contractual distribution controls may be considered in violation of the secrecy law.

Communications by pharmaceutical companies opposed to the misuse of medicines in executions have been critical in informing policies and practices in Louisiana in recent years. For example, in 2022, officials noted that they were unwilling to use manufactured medicines in lethal injection executions, with Corrections Secretary James LeBlanc testifying in court that the state did not want to jeopardize healthcare or risk the prison population by underhandedly purchasing drugs for executions.

Unfortunately, since then, a handful of legislators have sought to misrepresent the industy position, asserting that secrecy is needed because pharmaceutical manufacturers have an interest in providing the drugs and are only not doing so because of the risk of exposure.

There are ongoing discussions in Lousiana about the future of lethal injection and the industry perspective will continue to be critical.

In 2016, Mississippi passed legislation making the identities of suppliers located within the state of chemicals to be used in lethal injections confidential. Mississippi Code § 99-19-51 provides that “[t]he identities of . . . a supplier of lethal injection chemicals . . . shall at all times remain confidential.” The law defines “supplier of lethal injection chemicals” as a supplier “located within the state of Mississippi.”

This law creates a significant burden for companies seeking to effectively monitor the supply chain for restricted medicines and to ensure that their distribution restrictions are working effectively.

Citing this law, the Mississippi DOC has declined to disclose the means through which it has procured supplies of medicines intended for use in lethal injections. All of the companies that make the medicines listed in Mississippi’s execution protocol oppose the misuse of their medicines in executions and have enacted distribution controls to prevent their medicines from being purchased for this purpose.

An investigation overseen at Emory University hospital in Atlanta found that Mississippi was among a handful of states stockpiling execution drugs that are in short supply and which would otherwise be used collectively to treat more than 11,000 US patients in life-or-death procedures. Many of the drugs used in executions are listed on the World Health Organization’s Model List of Essential Medicines, which presents the minimum needs for a basic healthcare system, but are in dangerously short supply in the United States today.

Drug manufacturers Fresenius Kabi LLC and West-Ward Pharmaceuticals Corp. have raised concerns around the public health impact of these practices, noting that “[T]he use of the medicines for lethal injections creates a public-health risk by undermining the safety and supply of lifesaving medicines.”

Despite repeated requests from pharmaceutical companies that their medicines not be diverted for use in capital punishment, Mississippi has pressed ahead in its efforts to secure these firms’ products under the cover of a sweeping secrecy law. In so doing, Mississippi officials may be knowingly and deliberately undermining the contractual restrictions that companies have established to prevent the sale of their drugs to death rows.

In 2007, Missouri enacted Missouri Statutes § 546.720, which states: “The identities of members of the execution team, as defined in the execution protocol of the department of corrections, shall be kept confidential. . . . and shall not be subject to discovery, subpoena, or other means of legal compulsion for disclosure to any person or entity . . .” In 2013, the state revised its execution protocol to include the suppliers and producers of the drugs used in lethal injection executions in its “execution team.” Under the law, persons that knowingly disclose the identity of a supplier of drugs for use in lethal injections or a record that could identify such a person are subject to civil liability for actual and potentially punitive damages.

This law creates a significant burden for companies seeking to effectively monitor the supply chain for restricted medicines and to ensure that their distribution restrictions are working effectively.

Citing this law, the Missouri DOC has declined to disclose critical information about the supplies of Pentobarbital used in its executions. The DOC has refused to reveal the source of the medicines it has acquired or their condition and quality.

In spite of Missouri’s secrecy law, an investigation in March 2018 revealed that Missouri had been procuring medicines for use in executions since 2014 from a Missouri-based pharmacy called Foundation Care. This pharmacy has been the subject of a series of health scandals, from engaging in hazardous pharmaceutical procedures, including a failure to properly test drugs, to attempting to block FDA agents’ access to the pharmacy for an inspection, to alleged breaches of state and federal regulations.

Foundation Care has since been purchased by the healthcare company Centene Corporation, which opposes the misuse of medicines in executions and has vowed that it “will never supply any pharmaceutical product to any state for the purpose of effectuating executions.”

A number of other companies – including Pfizer, Inc., Akorn, Inc., and Hikma Pharmaceuticals – have repeatedly written to Missouri state officials informing them of the existence of their controls and seeking the immediate return of their products.

When journalists reported that Missouri might have obtained the pharmaceutical company Akorn, Inc.’s products, Akorn, Inc. wrote to the DOC in 2017 seeking the return of its products, stating: “If your prisons have obtained the prescription drug product pentobarbital directly or indirectly, you have obtained the product in violation of our selling agreements and we ask that you contact us immediately . . . If you have any remaining pentobarbital, we ask that you return it to us.” Missouri officials ignored this request.

In 2017, Hikma Pharmaceuticals also wrote to Missouri officials, stating “We object in the strongest possible terms to the use of any of our products for lethal injection.”

Hikma Pharmaceuticals also raised the possibility that Missouri’s actions could have an impact on the availability of medicines for patients in Missouri: “In the event that we were forced to implement additional controls to prevent these uses, it may have the unintended consequence of potentially preventing certain patients from receiving these medicines despite having a genuine medical need. This outcome would not be beneficial for anyone, particularly the people of Missouri. We believe that Missourians deserve high quality, generic medicines and we are very pleased to continue to play a role in manufacturing much needed products to improve health.”

Missouri’s secret procurement of pentobarbital has attracted concern from companies’ shareholders. In a court declaration in the Eighth Circuit, the trustee of the New York State Common Retirement Fund — an investor in Akorn, Inc. — expressed concern that if Missouri violated the stringent controls Akorn, Inc. had enacted to protect its products, the violation could create significant risks for the company. He wrote, “if the pentobarbital [in the possession of] the Missouri Department of Corrections is manufactured by the Company, that sale could have violated Akorn’s restrictions . . . thereby undermining the Company’s comprehensive policy that I believe manages reputational financial and legal risk.”

Despite repeated requests from pharmaceutical companies that their medicines not be diverted for use in capital punishment, Missouri has pressed ahead in its efforts to secure these firms’ products under the cover of a sweeping secrecy law. In so doing, Missouri officials may be knowingly and deliberately undermining the contractual restrictions that companies have established to prevent the sale of their drugs to death rows.

Enacted in 2009, Nebraska Revised Statutes § 83-967 makes “[t]he identity of all members of the execution team, and any information reasonably calculated to lead to the identity of such members” confidential. The Nebraska Department of Correctional Services (DCS) has interpreted this provision broadly, arguing that revealing the identity of a supplier of drugs intended for use in executions could lead to the disclosure of information concerning a member of the execution team.

In 2020, the Nebraska Supreme Court rejected the DCS’s argument in lawsuits brought by the ACLU of Nebraska and several media organizations. The court found that the DCS offered only “conclusory allegations” that disclosing the supplier of medicines could identify a member of the execution team. The ruling forced the DCS to release the records, revealing that the DCS obtained drugs manufactured by Fresenius Kabi LLC, Hikma Pharmaceuticals, Teva Pharmaceutical Industries, and Pfizer, Inc. Each of these companies opposes the misuse of its medicines in executions and has implemented distribution controls to prevent sales to states for this purpose.

The records revealed information about Nebraska’s 2017 procurement of drugs for use in implementing a new and untested execution protocol. The protocol includes the opioid fentanyl, a known drug of abuse. While the records have since been disclosed, Nebraska utilized its secrecy law to hide information on where these products originated, how they were made, and whether or not they were FDA-approved for three years.

The companies who make the medicines in Nebraska’s protocol are all opposed to their use in executions and have put distribution restrictions in place to prevent their sale to prisons for this purpose. By seeking to procure these medicines under cover of secrecy or through illicit means, Nebraska officials may be endorsing a black market for these products, some of which may have been imported illegally.

The companies whose drugs the DCS secretly obtained have sent numerous letters to the Office of the Governor, the Attorney General, and the Head of the DCS, asking that their efforts and intentions be respected. In 2017, Pfizer, Inc. wrote to the Nebraska DCS to seek the return of any Pfizer, Inc. products in the DCS’s possession. Similarly, in 2016, Hikma Pharmaceuticals wrote to the DCS stating that “We are extremely dismayed to learn that, despite our best efforts to ensure our medicines are used only for their intended medical purposes, some states continue to attempt to procure our products for use in lethal injections.”

In 2018, Fresenius Kabi USA LLC filed suit against the Nebraska DCS when it suspected the state obtained its drugs in violation of its distribution controls. The lawsuit alleged that the Nebraska DCS must have obtained its medicines “in contradiction and contravention of the distribution contracts the Company has put in place and therefore through improper or illegal means.”

Nebraska has a long history of obtaining lethal injection products fraudulently and against the wishes of manufacturers. In 2011, Nebraska tried to import sodium thiopental for use in executions through a middleman who had purchased the medicine by lying to the manufacturer of the drug, Naari AG, claiming that the product was intended for patient use in Africa. After it came to light that Naari AG’s products were instead sold to Nebraska for use in executions, the company issued a voluntary product recall as it was unable to guarantee the drugs’ safety, potentially resulting in “serious adverse health consequences” to the public if used. In a letter to Chief Justice Heavican of the Nebraska Supreme Court in November of 2011, Naari AG’s CEO wrote, “I am shocked and appalled by this news. Naari did not supply these medicines directly to the Nebraska Department of Correctional Services (NDOCS) and is deeply opposed to the use of the medicines in executions.”

Nebraska remained undeterred, and in a lawsuit filed in 2012, a former pharmacy director for the DCS alleged that she had been told to obtain sodium thiopental “by any means.”

While Nebraska’s interpretation of its secrecy statute was rejected by the courts, it is likely that the state will continue to attempt to procure drugs in violation of company controls and avoid disclosure of information about its efforts. This practice will create a significant burden for companies seeking to effectively monitor the supply chain for restricted medicines and to ensure that their distribution restrictions are working effectively.

There is currently no execution secrecy statute in Nevada, although the state redacts portions of its execution manual that may relate to secrecy. The Department of Corrections has released records related to the state’s lethal injection supplies in response to public records requests and in the context of Eighth Amendment litigation. Further, a lower state court in Nevada has ruled in favor of broad and expedient disclosure of execution-related records. ACLU of Nevada v. Nevada Department of Corrections concerned the ACLU’s request for information related to the scheduled execution of Scott Dozier by the State of Nevada in July 2018, using an experimental protocol which included diazepam, fentanyl, and cistatracurium besylate.

Nonetheless, Nevada presents a high risk because its law authorizes the use of medicines in lethal injection executions and the state has a documented history of acquiring medicines for use in executions in violation of company controls. At a hearing on April 25, 2022, the Director of NDOC confirmed they are actively seeking drugs and instructed the chief pharmacist to continually attempt to purchase the medications set forth in the protocol.

In July 2018, Alvogen, Inc. filed a lawsuit against Nevada and state officials alleging that the state used secrecy and “subterfuge” to obtain Alvogen’s Midazolam for use in an execution in violation of the company’s distribution controls. Hikma Pharmaceuticals USA Inc. and Sandoz Inc. later intervened, alleging that Nevada also unlawfully acquired their medicines.

A state court judge issued an injunction blocking Nevada from using Alvogen’s midazolam in a scheduled execution. The court found that the State “did not acquire Alvogen Midazolam Product in good faith, and it did so knowing that it violated Alvogen’s property rights.” Because the state evinced “bad faith disregard for Alvogen’s rights,” the court held that the state was not a “good faith buyer” of the drugs. It took more than two years for the litigation to be fully resolved, with Nevada agreeing to return the products to all three companies in April of 2020.

All of the companies that make the medicines in Nevada’s protocol are opposed to the misuse of their medicines in executions and have put distribution restrictions in place to prevent sales to prisons for this purpose. By seeking to procure these medicines under cover of secrecy or through illicit means, Nevada officials may be endorsing a black market for these products, some of which may have been imported illegally.

Companies have sent numerous letters to the Office of the Governor, the Attorney General, and the Head of the DOC in Nevada, asking that their efforts and intentions be respected.

For example, in 2017 Pfizer, Inc. wrote to the Nevada DOC seeking the return of any Pfizer, Inc. products in the DOC’s possession. Similarly, in 2017 West-Ward Pharmaceuticals Corp. wrote to the state to note that they “object in the strongest possible terms to the use of any of our products for lethal injection. Such use is not only contrary to the intended label use for the Products but also inconsistent with our values and mission of improving lives by providing quality, affordable healthcare.”

North Carolina General Statutes § 132-1.2, enacted in 2015, exempts records that “[r]eveal[ the] name, address, qualifications, and other identifying information of any person or entity that manufactures, compounds, prepares, prescribes, dispenses, supplies, or administers the drugs or supplies” for lethal injection from public disclosure.

This law creates a significant burden for companies seeking to effectively monitor the supply chain for restricted medicines and to ensure that their distribution restrictions are working effectively.

Affected companies that manufacture Pentobarbital, the drug listed in North Carolina’s execution protocol, oppose secrecy and the misuse of medicines in executions. For example, in 2014 Sagent Pharmaceuticals announced, “In order to help ensure that patients have access to our products for use in accordance with the products’ labels but to ensure our products are not used in capital punishment, Sagent is implementing appropriate distribution controls and other measures. In particular, Sagent will not accept orders from correctional facilities and prison systems for products believed to be part of certain states’ lethal injection protocols. Also, each of Sagent’s distributors and wholesalers will be asked to make commitments not to sell or distribute any such products to these facilities.”

Oklahoma Statutes § 22-1015, enacted in 2011, makes the identity of all persons who supply drugs, medical supplies, or equipment for use in executions confidential. The statute also exempts state purchases of drugs for use in lethal injection from the state’s purchasing transparency act. In April 2024, the Oklahoma legislature expanded its secrecy law, mandating that confidentiality applies not only to the identity of any person who participates in an execution, but also any record or information that can “reasonably lead directly or indirectly to the identification” of such a person.

This law creates a significant burden for companies seeking to effectively monitor the supply chain for restricted medicines and to ensure that their distribution restrictions are working effectively.

In Februrary of 2020, Oklahoma announced that it intends to resume executions by lethal injection and that it had found a supply of drugs to do so. Following Oklahoma’s abrupt return to lethal injection, retired Akin Gump attorney Fred Hodara submitted written public records requests to the DOC in an effort to seek information related to the DOCs plan to resume lethal injection executions. This litigation is still pending before the District Court of Oklahoma. Over the course of discovery, the DOC acknowledged that it had not even conducted a search for responsive records, and later provided documents that were almost wholly redacted. The course of the litigation so far indicates that the state continues to hinder company efforts to protect their medicines from misuse. The case is set to go to trial later in 2024.

In August 2022, Oklahoma began its mass execution of 25 prisoners over two years. Newly-released court records from 2020 show that officials from the Oklahoma DOC testified that their Midazolam supplies at the time were “made by a manufacturer” despite the fact that the companies that manufacture the drugs in Oklahoma’s execution protocol are all opposed to their use in executions and have put distribution restrictions in place to prevent their sale to prisons for this purpose. Affected companies have repeatedly expressed this position in communications to the state. In March 2015, for example, Akorn, Inc. wrote to the Oklahoma Attorney General noting that it “strongly objects to the use of its products in capital punishment” and describing the controls it had put in place to prevent the sale of midazolam to state departments of corrections for use in executions.

The February 2020 announcement came after Oklahoma became the first state to categorically reject lethal injection as a method of execution in 2018. In abandoning the method, state officials noted that they were unable to procure medicines for use in executions legally given the controls that manufacturers have put in place, and did not want to buy drugs from “seedy individuals” on “back streets.” State officials also referred to problems with lethal injections in other states such as Ohio and Alabama, where inmates had been “poked and prodded” for hours in prolonged executions that Oklahoma officials described as “inhumane.”

Given the state’s prior recognition that it could not legally procure medicines for use in executions due to company controls, the resumption of executions raises significant concerns that state officials may be knowingly and deliberately undermining the contractual restrictions that companies have established to prevent the sale of their drugs to death rows under the cover of secrecy.

In May 2023, South Carolina passed a far-reaching secrecy statute. Section 24-3-580 of the South Carolina Code mandates that “all identifying information” relating to members of the “execution team” is subject to “absolute confidentiality.” The execution team is defined broadly to include “any person or entity that participates” in an execution, including any entity that "prescribes, compounds, tests, uses, manufactures, imports, transports, distributes, supplies, prepares, or administers the drugs."

Identifying information may not be disclosed in judicial, legislative, or administrative proceedings. Violating these provisions may be punished by a fine and a prison sentence of three years.

The inclusion of manufacturers in the expanded execution team, in combination with the potential civil and criminal sanctions for disclosure of any information relating to the execution drugs or team, present serious commercial risks for companies. On the face of the statute, companies seeking to comply with regulatory reporting obligations or enforce contractual distribution controls may be considered in violation of the secrecy law.

Throughout the legislative session in South Carolina, the position of the pharmaceutical industry was falsely represented. Governor McMaster erroneously noted that the companies who make the drugs on South Carolina’s protocol “will not sell them unless their identities are shielded by state law,” and urged the general assembly to pass this legislation - despite the pharmaceutical industry’s express wish not to be associated with executions.

On January 31, 2024, five manufacturers of medicines that are misused in lethal injection protocols collectively filed an amicus brief to state their deep concern about South Carolina’s secrecy law.

In the brief, Exela Pharma Sciences, Fresenius Kabi USA, Hikma Pharmaceuticals USA Inc., Sagent Pharmaceuticals and Sandoz Inc. robustly countered the misstatement made by South Carolina officials that manufacturers want secrecy in order to sell their drugs to be used in executions.

They further outlined their opposition to the secrecy law on the basis that it not only compromises the safety and efficacy of drugs, including lethal injection drugs, it also threatens public health, undermines the commercial interests of manufacturers, and exposes them to financial, reputational and legal risks.

The South Dakota legislature expanded Section 23A-27A-31.2 of the Codified Laws in 2013 to make “the name, address, qualifications, and other identifying information relating to the identity of any person or entity supplying” drugs intended for use in executions confidential. The legislature passed the amendment at the request of the Attorney General. Disclosure of the above information is a Class 1 misdemeanor, punishable by up to one year in jail and a fine of up to $2,000.

This law creates a significant burden for companies seeking to effectively monitor the supply chain for restricted medicines and to ensure that their distribution restrictions are working effectively.

All of the companies that make the medicines listed in South Dakota’s execution protocol strongly oppose states’ use of secrecy and deception to obtain their products and have put controls in place to prevent their sale for use in executions.

For example, Sagent Pharmaceuticals — which manufactures Pentobarbital — has written that “in order to help ensure that patients have access to our products for use in accordance with the products’ labels but to ensure our products are not used in capital punishment, Sagent is implementing appropriate distribution controls and other measures. In particular, Sagent will not accept orders from correctional facilities and prison systems for products believed to be part of certain states’ lethal injection protocols.”

Tennessee Code § 10-7-504, enacted in 2013, makes information relating to any person or entity “that has been or may in the future be directly involved in the process of executing a sentence of death” confidential. This includes those “involved in the procurement or provision of chemicals, equipment, supplies, and other items for use in” executions.

This law creates a significant burden for companies seeking to effectively monitor the supply chain for restricted medicines and to ensure that their distribution restrictions are working effectively.

In early 2018, evidence emerged that the Tennessee DOC had secretly procured medicines for use in executions, likely in direct violation of contracts entered into by the drugs’ manufacturers and wholesalers.

In May 2022, Tennessee’s Republican Governor Bill Lee imposed an official moratorium on executions while an independent review of the lethal injection protocol is carried out.

This announcement followed the last-minute cancellation of Oscar Smith’s execution in Tennessee after officials failed to test its drugs for bacterial endotoxins. Governor Lee appointed former US Attorney Ed Stanton to conduct the review and investigate the following: what led to testing the lethal injection chemicals for only potency and sterility but not endotoxins ahead of the April 21 execution; clarity around the lethal injection process manual, which was last updated in 2018, and adherence to testing policies since the update; Tennessee Department of Correction staffing considerations. In December 2022, the finalized review highlighted the fact that Tennessee has not complied with its own lethal injection protocol ever since it was revised in 2018.

In addition to using compounded Midazolam and Potassium Chloride, Tennessee has secretly acquired manufactured Vecuronium Bromide, in contravention of the contracts and wishes of the companies who make this product. Pharmaceutical companies may have played a driving role in pausing executions in Tennessee by proactively investigating possible diversions and communicating their opposition to state leaders.

All of the companies that make the drugs in Tennessee’s execution protocol emphatically oppose the misuse of their products in capital punishment. These include some of the world’s largest pharmaceutical firms, such as Pfizer, Inc., Johnson & Johnson, Roche Holding AG, and Akorn, Inc..

Pfizer, Inc. has written that “Pfizer strongly objects to the use of its products as lethal injections for capital punishment . . . We are enforcing a distribution restriction for specific products that have been part of, or considered by some states for their lethal injection protocols.”

Despite repeated requests from pharmaceutical companies that their medicines not be diverted for use in capital punishment, Tennessee has pressed ahead in its efforts to secure these firms’ products under the cover of a sweeping secrecy law. While the temporary moratorium reduces the risks to pharmaceutical companies, Tennessee officials may be knowingly and deliberately undermining the contractual restrictions that companies have established to prevent the sale of their drugs to death rows.

Section 43.14 of the Texas Code of Criminal Procedure, implemented on September 1, 2015, makes “[t]he name, address, and other identifying information” of “any person or entity that manufactures, transports, tests, procures, compounds, prescribes, dispenses, or provides a substance or supplies used in an execution” confidential.

This law creates a significant burden for companies seeking to effectively monitor the supply chain for restricted medicines and to ensure that their distribution restrictions are working effectively.

In 2013, it came to light that the Texas Department of Criminal Justice (TDCJ) had used deception to purchase compounded medicines for use in executions from a Texas business.

TDCJ ordered compounded pentobarbital from the company under the name “Huntsville Unit Hospital,” misleading it about the intended use of the drug. The state also wrote out a false prescription for the drug made in the name of the warden of the Huntsville Unit.

Affected companies oppose secrecy and the misuse of medicines in executions and have written directly to the Office of the Governor, the Attorney General, and TDCJ expressing this position.

In March of 2011, the company Lundbeck A/S wrote to the director of TDCJ to inform the state that “Lundbeck has become aware that the State of Texas has now decided to use Lundbeck’s product Nembutal (pentobarbital sodium injection, USP) for [use in executions.] Lundbeck is adamantly opposed to the use of Nembutal, or any product for that matter, for the purpose of capital punishment.” Since that time, TDCJ has received multiple letters from pharmaceutical companies including Hospira, Fresenius Kabi LLC, and Pfizer, Inc.

Ohio Code § 2949.221 makes records that identify or could reasonably lead to the identification of a person that “manufactures, compounds, imports, transports, distributes, supplies, prescribes, prepares, . . . or tests any of the compounding equipment or components, the active pharmaceutical ingredients, the drugs or combination of drugs” for use in lethal injection confidential. This provision applies to persons that engaged in the listed actions between March 2015 and March 2017.

Earlier drafts of the secrecy law were even more severe. A prior version directly targeted company contracts, purporting to render “any contract, subcontract, agreement, addendum, or understanding . . . designed to prevent the state . . . from obtaining” drugs for lethal injections void. Given the apparent unconstitutionality of the contract provision, the legislature ultimately removed it.

Although Ohio secrecy legislation posed substantial risks for companies, those risks have decreased. Vocal company opposition to Ohio’s secrecy law has influenced positive developments since 2019.

In July 2017, two pharmaceutical companies, Fresenius Kabi USA LLC and Sandoz AG, filed an amicus curiae brief in support of litigation in Ohio seeking the disclosure of records from the Ohio Department of Rehabilitations and Corrections (ODRC). The companies noted they “have a keen and important interest in knowing whether any department of corrections have obtained their drugs despite and in contravention of their distribution controls and contracts. [The Companies] have not requested to have records pertaining to them classified as confidential under R.C. 2949.221 [Ohio’s secrecy statute] … Any refusal by the state to disclose the manufacturers of its lethal injection drugs directly undermines [the companies’] interests, impeding their ability to preserve the integrity of their contracts.”

Affected companies have also written directly to the Office of the Governor, the Attorney General, and the Head of the ODRC expressing opposition to the misuse of their medicines in executions and asking that their efforts and intentions be respected. In 2017, six companies (Pfizer Inc., West Ward Pharmaceuticals Corp., B. Braun Melsungen AG, Mylan N.V., Sandoz AG, and Sagent Pharmaceuticals) wrote to the ODRC noting the possibility that the state may have secretly purchased drugs in violation of their contracts. Sandoz AG emphasized how “[t]he uncertainty surrounding whether our products have been acquired by Ohio for these executions impedes our ability to enforce our company policies, protect our contractual rights, and preserve the integrity of our business relationships.”

In 2019, a federal judge in Ohio acknowledged how secrecy distorts the market, explaining: “A free market posits voluntary exchanges between willing buyers and willing sellers. When buyers and sellers have different amounts of information about the proposed transaction, economists refer to the situation as information asymetry. . . . [T]he sale of execution drugs to the State of Ohio . . . would be an unfree transaction if a seller had announced its intention not to have its products used in executions and then were deceived in a sale to the State because the drugs were being bought by an anonymous agent.”

Over the past five years, Ohio has taken steps that demonstrate a greater respect for companies’ positions. In August 2019, Governor Mike DeWine postponed a forthcoming execution. DeWine pointed to communications from pharmaceutical companies, noting that the state couldn’t find any company willing to supply drugs for use in lethal injections. DeWine further relied on the public health risks that could arise from violating company contracts, explaining that if Ohio sought to violate company controls, “thousands of [Ohio] citizens” could see their “health . . . put in peril.” Since then, Governor DeWine has continued to grant reprieves to inmates on death row as drugs remain unavailable.

In January 2024, DeWine confirmed that he expects there will be no further executions before he leaves office. In his speech, he referenced communications from pharmaceutical companies who have educated him on the potential negative public health consequences of the diversion and misuse of medicines in executions.

Ohio law still requires that the death penalty be implemented via lethal injection. But the positive steps over the last five years suggest that the state is no longer actively seeking to acquire drugs in violation of company controls. Moreover, the time limit on Ohio’s secrecy law means that companies should be able to learn about potential diversions after 2017.