The two executions noted in today's News Scan have been carried out. In the Oklahoma case, the Supreme Court voted 5-4 to deny a stay on the murderer's claim regarding the use of midazolam as the first drug of the three-drug protocol. Justice Sotomayor wrote a dissent.
The only reason any state uses midazolam is that pentobarbital, the drug veterinarians use every day for euthanasia, is unavailable. It is made in the United States but its manufacturer, Akorn, places resale restrictions on its distributors. Akorn does that because the agreement by which it acquired the rights to the drug from Lundbeck, a European company, requires it to. Lundbeck was pressured into restricting sale by anti-death-penalty forces in Europe.
So here we are with a domestic policy choice that is ours to make and none of Europe's damn business being impacted by Europe, with the perverse result that there is some possibility that murderers may suffer more pain in execution as a result, if the concerns noted in Justice Sotomayor's opinion have any validity.
The solution is simple. Congress can and should declare resale restrictions on pentobarbital void as restraints on trade and against public policy.
The only reason any state uses midazolam is that pentobarbital, the drug veterinarians use every day for euthanasia, is unavailable. It is made in the United States but its manufacturer, Akorn, places resale restrictions on its distributors. Akorn does that because the agreement by which it acquired the rights to the drug from Lundbeck, a European company, requires it to. Lundbeck was pressured into restricting sale by anti-death-penalty forces in Europe.
So here we are with a domestic policy choice that is ours to make and none of Europe's damn business being impacted by Europe, with the perverse result that there is some possibility that murderers may suffer more pain in execution as a result, if the concerns noted in Justice Sotomayor's opinion have any validity.
The solution is simple. Congress can and should declare resale restrictions on pentobarbital void as restraints on trade and against public policy.
Two heinous murderers getting justice.
Florida, in my opinion, should not have waited for the Supreme Court to rule on the execution. Why states wait in the absence of a stay is beyond me.
Both of these crimes should have had a mandatory death penalty.
If Pentobarbital is a patent owned by Lundbeck, I think as a general matter of intellectual property law, they are free to place various restrictions on how it licenses the use of its product. I am sure Lundbeck's rationale is if it did not place the restriction on resale, it would cause them all sorts of problems which are not worth the profit to be made from selling drugs for the 30 or so executions every year in the United States.
If Congress were to pass a law specifically banning such restrictions, it would cause a morass of litigation involving intellectual property laws and maybe even everyone's favorite concept that is could be a bill of attainder. It certainly would take years to resolve.
Now, if Pentobarbital is not patented and is the equivalent of being a "generic" drug, the better course of action would be to provide incentives to domestic manufactures to produce the drug such as some sort of tax credit which if sufficiently generous some domestic company would produce the drug and the problem would be solved.
Pentobarbital is an old drug. I'm sure it went off patent long ago. The trademark Nembutal is owned by Lundbeck and licensed to Akorn, as I understand it.