AP Exclusive: How Del. got rare execution drugs

RANDALL CHASE Associated Press Published:

DOVER, Del. (AP) -- Just days before a manufacturer cracked down on the use of a key execution drug last year, Delaware was able to get a shipment of the sedative from one of the drug maker's suppliers through a complicated and secretive procurement process.

Documents obtained by The Associated Press show that the process involved a state official with close ties to the pharmaceutical industry and was kept secret from all but a few Department of Correction officials as it unfolded. Even the attorney general was kept out of the loop for much of the process.

The documents offer a behind-the-scenes look at how Delaware officials navigated a procurement process that can be fraught with political and legal consequences. States have been scrambling over the past two years to revamp their execution procedures and find the sedatives needed to carry them out as manufacturers have sought to keep two key drugs out of execution chambers.

When the DOC needed to replenish its supply of lethal injection drugs last spring, it turned to a man who spent years cultivating contacts in the pharmaceutical industry -- Delaware Economic Development Director Alan Levin. Like many other states, Delaware early last year began considering using pentobarbital after supplies of another execution mainstay, sodium thiopental, dwindled and its production was halted in the U.S.

At the time, however, there also was consternation over the use of pentobarbital. The Danish manufacturer of that drug had sought to curb its use in executions by sending letters to government authorities.

Before Levin's involvement, DOC Commissioner Carl Danberg and his staff had tried other ways of getting execution drugs, including sodium thiopental or pentobarbital, without success. But with a single email, Levin, former head of the Happy Harry's drug store chain, was able to get the ball rolling, allowing the DOC to get the drugs it needed in time for an execution last July.

"Once Alan provided me with a contact, things fell into place," Danberg said.

The department's previous supplies of lethal injection drugs expired after the 2005 execution of Brian Steckel. The batch of drugs delivered last June was enough for several lethal injections, including that of convicted killer Shannon Johnson, who was executed Friday. The warden of the state prison in Smyrna that houses Delaware's death row purchased a wine refrigerator to keep some of the drugs at the proper temperature.

Records obtained by The AP after it successfully appealed the DOC's denial of a Freedom of Information Act request show that Danberg asked Levin last May for help in finding execution drugs.

Levin immediately sent an email to Mike Kaufmann, CEO of the pharmaceutical segment for Cardinal Health Inc., one of the largest wholesale distributors of prescription drugs in the United States. Cardinal also was a supplier for the manufacturer of pentobarbital, Denmark-based Lundbeck Inc., and would later become subject to Lundbeck's restrictions on distributors providing pentobarbital for use in executions.

"While I know this is a bit of a political issue, since Cardinal is not located in Delaware I believed it may be easier for Cardinal to do this," Levin wrote to Kaufmann. "Is this something that Cardinal would be interested in selling to the state of Delaware? If not, do you have any recommendations who else we can pursue? While our need is not immediate, we do believe that we may need the drugs within the next 90 days."

Three days later, Danberg received an email from Cardinal's vice president of government accounts. Over the next several weeks, Cardinal representatives worked with DOC employees to procure and ship quantities of pentobarbital, pancuronium bromide and potassium chloride.

"I was happy to help facilitate it," said Levin, explaining that Happy Harry's, which he sold in 2006 to Walgreen Co., had done business with Cardinal for a decade or more.

"I understand the judicial system," added Levin, a former prosecutor who noted that he believes in the death penalty.

A Cardinal spokeswoman said the company would not comment on Delaware's procurement process and that it does not comment on specific interactions with customers.

But the emails show that DOC officials were aware of the sensitive nature of their purchase, and they took pains to keep the process quiet.

"This is NOT for discussion or distribution to anyone, including your own staff until we get a chance to discuss," Danberg wrote in a May 25 email to key lieutenants.

"Emphasize that I do not want this discussed yet. Certainly not until the drugs are on hand. I am not even telling the AG yet," Danberg wrote.

Asked about the secrecy, Danberg noted that supplies of sodium thiopental -- once a key execution drug for many states -- dried up because of what he believes was public pressure on the supplier. Many states switched to pentobarbital after the sole U.S. manufacturer of sodium thiopental said last year that it would not resume production.

"I did not want it getting outside the smallest number of people as possible how we were pursuing the chemicals because I wanted to make sure we had a supply of the chemicals first," Danberg said. " ... I did not want the supplier of the chemicals to go public, to be publicly known, simply because I did not want that source to dry up."

Danberg's caution was understandable, given that Lundbeck had stated in January 2011 that pentobarbital was not intended for use in lethal injections. It also sent letters to corrections officials in the U.S. urging them to stop the practice.

After lining up Cardinal as a supplier, DOC officials worked with the state Department of Health and Social Services in an attempt to have the drugs shipped to the Delaware Hospital for the Chronically Ill. The DOC wanted to use the hospital as an intermediary so it could take advantage of lower pricing through a group purchasing program for government agencies known as the Minnesota Multistate Contracting Alliance for Pharmacy. But the DOC was unable to overcome various regulatory and administrative hurdles to getting the drugs shipped through DCHI.

Officials then spent considerable time arranging for the drugs to be shipped directly to the Department of Correction, which took final delivery on the morning of June 29. It was billed just under $27,300 for the pentobarbital and about $170 total for the pancuronium bromide and potassium chloride.

Two days later, on July 1, Lundbeck announced a new, tightly controlled distribution system intended to keep pentobarbital out of the execution chamber while ensuring that hospitals and other treatment centers could still get it. Hospitals were required to sign documents that they wouldn't resell it or allow its use in executions.

Lundbeck sold the rights to pentobarbital last year to Illinois-based Akorn Inc., but the companies said that the distribution system would continue. Akorn did not respond to telephone messages seeking comment, but a spokeswoman for Cardinal said that when manufacturer clients place distribution restrictions on a drug, Cardinal honors those restrictions.

Delaware has enough drugs on hand for four more executions, but the hard-to-obtain pentobarbital expires in September 2013.

"That leaves me able to carry out a couple of more executions. Then we're going to have to find either an alternative source of sodium thiopental or an alternative source of pentobarbital," Danberg said.