Arkansas got execution drug made by resistant manufacturer

One of the three drugs Arkansas planned to use in a lethal injection this week was made by a New York company that says it doesn't sell its products if it fears they'll be used in executions, court documents released Wednesday show.

A package insert and drug label for the state's supply of midazolam released by the state in Pulaski County Circuit Court identifies Athenex as the maker of the drug, one of three used in Arkansas' lethal injection process. The insert was included as part of an affidavit filed by state Correction Department officials.

The affidavit was filed the day after Pulaski County Circuit Judge Mackie Pierce ordered the Department of Correction to release a copy of the insert to Steven Shults, an attorney who had sued the state for the document. The Arkansas Supreme Court last week ruled that a state law keeping the source of Arkansas' execution drugs secret applied to suppliers and sellers, but not drug manufacturers. Pierce ruled Wednesday that other information on the drug label that could be used to identify the drug's seller can be withheld.

An Athenex spokesman, Jim Polson, said that however the state acquired its drug, it would have violated Athenex's agreements with distributors barring the use of its products in executions. The company said in a statement posted on its website Wednesday that it does not accept orders from prisons if it believes the products will be used for lethal injections and "does not want any of our products used in capital punishment."

In an interview, Polson said the company had never sold drugs directly to the state of Arkansas and that its distributors know not to sell them for use in executions anywhere. "It's clearly stated in all of our contracts with them," he said.

Arkansas had planned to use the drug Thursday to put convicted murderer Jack Greene to death, but the state Supreme Court halted his execution Tuesday so that it can consider a lawsuit related to claims that Greene is severely mentally ill. The state is not appealing that order.

Arkansas put four inmates to death in April, half the number it had intended to execute before its previous supply of midazolam expired April 30. The state acquired more midazolam in August.

During Arkansas executions, midazolam sedates the inmate, vecuronium bromide stops their lungs and potassium chloride stops their heart.

In response to an open records request from The Associated Press, the state on Wednesday also released labels for the other two drugs, which had previously been identified through news reports and court filings. The labels confirm Hospira made the state's vecuronium bromide, as the AP had identified last year.

Pfizer, Hospira's parent company, said earlier this year that a distributor sold the drug to Arkansas without the pharmaceutical company's knowledge. A lawsuit is pending before the state Supreme Court over the distributor's claims that Arkansas misleadingly obtained the drug.

Arkansas' potassium chloride was made by APP Pharmaceuticals, a division of Fresenius Kabi. The company had written to the state previously asking it not to use its products in executions.

Representatives of Pfizer and Fresenius Kabi also said Wednesday they had made no direct sales to Arkansas.

"Pfizer makes its products to enhance and save the lives of patients we serve," company spokesman Steven Danehy said. "We strongly object to the use of any of our products in the lethal injection process for capital punishment."

At Fresenius Kabi, spokesman Matt Kuhn said the state ran the risk of injecting inmates with flawed drugs.

"... Arkansas may have acquired this product from an unauthorized seller," Kuhn wrote in an email. "Pharmaceuticals obtained in this manner are at risk of adulteration or chemical change due to improper handling such as failure to maintain proper temperature levels during storage and transport."

Arkansas officials said previously the state paid $250 in cash in August for enough midazolam to carry out two executions.