By Tim Lockette
The Anniston Star
MONTGOMERY — Illinois-based drug maker Akorn asked Alabama officials earlier this month to return any Akorn-made drugs the state may be planning to use in executions by lethal injection.
“If your 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,” Akorn’s general counsel Joseph Bonaccorsi wrote in a letter to the Alabama Department of Corrections on March 4.
Akorn is a maker of midazolam, the drug Alabama has turned to in a years-long search for substances it can use to kill condemned inmates.
Death penalty states have been scrambling in recent years to find execution drugs, due to drug shortages. Drug makers in Europe, where there’s strong opposition to capital punishment, have for years refused to sell the drugs to prison systems in death-penalty states. Some American companies have followed suit.
Alabama hasn’t executed an inmate since 2013. State officials last year announced they didn’t have the drugs on hand to perform an execution. In September, according to court documents, the state settled on a new three-drug combination for executions: a dose of midazolam as an anesthetic, followed by rocuronium bromide as a muscle relaxer and potassium chloride to stop the heart.
Less than a month after that new formula came to light a German company divested itself of $60 million of stock in Mylan, an American maker of rocuronium bromide. British activists claimed Mylan was a potential maker of Alabama’s rocuronium bromide.
Mylan didn’t respond to reporters’ questions about the issue at the time, but in an email to The Star on Tuesday, Mylan vice president of communications Nina Devlin said the drug is “not approved for, labeled for or marketed for use in lethal injections.” Devlin said Mylan’s rocuronium is made by a third party in India and distributed to wholesalers, and that the company doesn’t sell directly to prisons and isn’t aware of any use of its drugs in executions.
State officials haven’t commented on the sources of Alabama’s lethal injection drugs. A bill that passed the Alabama House of Representatives last week would make secret the names of death penalty drug suppliers; supporters of the bill say they intend to protect drug makers from retribution by anti-death-penalty activists. The bill, which has yet to reach a vote in the Senate, would block the names of those drug makers even from discovery in court.
Despite the lack of a current law making those names secret, corrections officials have denied requests by The Star and other newspapers for information on the sources of the state’s execution drugs.
Last month, however, Akorn’s name emerged in court documents in the death penalty case of Thomas Arthur, an inmate whose scheduled Feb. 19 execution was stayed by a federal court. Lawyers for the Alabama attorney general’s office included one of Akorn’s manuals for use of midazolam in a court filing, twice referring to it as “the manufacturer’s package insert” for the drug.
After news of the court filing became public, Akorn — which had long remained silent on its policy on lethal injection — told The Star the company did not sell the drug directly to Alabama. The company also said it would not sell drugs to prison systems in capital punishment states, a measure intended to prevent their use in executions.
Bonaccorsi, Akorn’s lawyer, reiterated that stance in his March 4 letter to the Alabama Department of Corrections.
“Akorn strongly objects to the use of its products in capital punishment,” Bonaccorsi wrote. The letter warns that use of midazolam for lethal injection is “contrary to the FDA approved indications” for the drug and “may be in violation of the Controlled Substances act.
Attempts to reach Akorn officials Tuesday for comment on the letter were not successful.
Department of Corrections spokesman Bob Horton confirmed Tuesday that the department had received the letter, but had not yet responded to Akorn.
“We have not responded to the letter, and we have not returned any drugs,” Horton said. Asked if Akorn is the source of Alabama’s midazolam, Horton said “we’re still not able to discuss” the sources of execution drugs.
“This appears to be a blanket letter sent to all the states with the death penalty,” Horton said.
The Wall Street Journal reported March 4 that Akorn was asking states for the return of their drugs. On the same day, The Star filed a public records request for letters from Akorn to Alabama officials.
Corrections officials made the letter available Tuesday.