Oregon Defends Its Redistribution of Lethal Injection Drugs

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If the governor is serious about his anti-capital punishment stance, he would make sure the state's death drugs never see another chamber.

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When The Atlantic published "Oregon's New Death-Penalty Hypocrisy" on December 26, folks could assume that Oregon Governor John Kitzhaber didn't know (yet) that his state's prison officials were desperately searching for a vein in which to inject lethal drugs back into the death-penalty market. He now knows about these ongoing efforts, and his do-nothing response leaves us to question the depth of his moral analysis and convictions.

Oregon's prison officials want to recoup the $18,000 they spent collecting three drugs with little use other than lethal injection -- drugs now in high demand after the human-rights-promoting European Union banned their import into the United States. This decision to restock the market comes after Gov. Kitzhaber laid out his growing moral discomfort over the death penalty, resulting in his decision to use the power of his office to halt any future executions scheduled to take place in Oregon (including one scheduled for December 6).

As expected, Oregon's Department of Corrections has dutifully begun dismantling the state-owned machinery of death. But given the marching orders they've received from their executive, it boggles the mind that Oregon's executioners would offer their supplies up to other states (other states are far more likely to use them too -- Oregon's carried out just two executions in recent decades, both under Kitzhaber in the late 1990s).

Trying to recoup the costs of that machinery doesn't even make pressing economic sense. The state spent a total of $1.3 million for costs related to preparing for its canceled December 6 execution, most of it in legal expenses. Just $42,000 of that final bill was spent at the Department of Corrections for the administrative costs of carrying out the sentence, including the procurement of the lethal cocktail ingredients.

The Governor's office told me that Oregon is trying to return the drugs to the wholeseller, that they are not "selling" the drugs, "merely exploring options to return it." This contention both misses the larger point that the drugs will now be made available for other states to use, and contradicts what the Department of Corrections told Lauren Dake, statehouse reporter for The Bend Bulletin, who first uncovered the lethal liquidation on December 24:

"At the time (we purchased the drugs) manufacturers were tightening restrictions and discouraging the DOC from using them for lethal injection purposes," said DOC spokeswoman Jeanine Hohn.

...To offload the drugs, the state is working with what's known as a reverse wholesaler.

"There are a few of those folks around," Hohn said. "They are licensed by the federal government, and they manage the stocking and restocking of drugs monitored by the Drug Enforcement Agency."

The DOC makes it pretty clear that they are searching for a special kind of buyer, not calling the phone number listed on their receipt.

The state of Oregon should be aware that the value of these drugs is generated by their limited supply. They are not commonly used in medicine. After return to a domestic wholeseller, they will be available for other states to purchase, putting Oregon in the exact same position as a pharmaceutical company supplying such a wholeseller: contributing supply to the market.

Governor Kitzhaber can direct his Department of Corrections to three options (that I can see) in order to remain consistent:

1. Try to get a refund from the original supplier along with a certification that the drugs will not be used for executions.

2. Track down the original manufacturer of each drug and politely ask them to purchase the drugs back, so as to further disassociate their companies from executions. I give the credit for this clever idea to "rick jones" who posted it in the comments section of the first story on this issue.

3. Destroy the drugs.

Shipping these surplus drugs to a lethal injection arms dealer, no questions asked, would be the most inconsistent and negligent option. That's not a choice befitting the setting of Portlandia. We'll see where Oregon goes from here.

Image: Associated Press.

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Ford Vox, MD, is a physician, based in Atlanta, who specializes in caring for people with complex brain injuries. He has written for Newsweek, Slate, and the Los Angeles Times.

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