Cleve Foster set to die with Lundbeck drugs in Texas as shareholders meet in Copenhagen

The managers of Danish pharmaceutical manufacturer Lundbeck must today face shareholders at their Annual General Meeting in Copenhagen as Texas, home to the USA’s busiest death chamber, prepares to kill its first prisoner with Lundbeck-produced pentobarbital.

Cleve Foster will be executed on the 5th April using an experimental procedure, after a shortage of anaesthetic sodium thiopental forced Texas to switch to pentobarbital. Cleve has always protested his innocence and another man has confessed to the crime in question; Cleve’s death will be the first of potentially hundreds across the USA for which Lundbeck, the sole supplier of pentobarbital, now bears responsibility.

Lundbeck management last week voted to continue supplying pentobarbital for lethal injections across the US, deciding against altering distribution contracts because they were apparently worried about what their distributors might think. Yet Lundbeck has failed to produce any evidence that its distributors would reject the new contracts, which would include a straightforward ‘end-user’ clause forbidding the supply of execution chambers. Indeed sources tell Reprieve that Lundbeck managers did not even discuss the new contracts with their distributors, who may well have been in full support. Instead, they opted to simply ‘hope’ US states stop using Lundbeck drugs – a strategy they themselves admit ‘may be naïve’.

Cleve Foster was sentenced to death in 2002 despite the fact that another man, Sheldon Ward, had confessed to the crime. Cleve, then a recruiting officer in the army, was convicted for the murder of Mary Pal after the jury were told that he was a frequent customer of a fast-food chain called ‘Whataburger’ and that a cup from a ‘Whataburger’ restaurant (which tested negative for Cleve’s DNA) had been found near Mary’s body.

Recent shortages of the anaesthetic sodium thiopental have forced prisons in Oklahoma, Ohio and Texas to abandon the standard lethal injection protocol used by the majority of executing states, and switch to pentobarbital as an untested alternative. Mississippi and Arizona have already stated their intention to switch to pentobarbital, and it is only a matter of time before all other executing states follow suit. Pentobarbital may either replace sodium thiopental in the three-drug protocol, or be used as a sole drug for overdose. The method is considered dangerous because the drug, a sedative, was not designed for executions and has no clinical history of such use.

The Danish press has picked up on the story and long pieces on Lundbeck’s refusal to end their involvement in the lethal drugs trade have appeared in the national newspapers Jyllands-Posten and Borsen.

Reprieve has provided Lundbeck with a legal briefing advising them of their legal options and their responsibility to act.

Reprieve Investigator Maya Foa said: 

“Lundbeck shareholders will soon face the consequences of their management’s grossly irresponsible decision – the needless killing of a man who protests his innocence. By doing business with execution chambers in a dysfunctional justice system, Lundbeck will damage its reputation beyond measure. Lundbeck managers must reverse their decision and impose end-user contracts immediately. Nothing less will do.”

For more information please contact Katherine O’Shea at Reprieve’s Press Office katherine.oshea@reprieve.org.uk / 020 7427 1099 / 07931592674.

Notes for Editors:

Background:

In the summer of 2010, the only US manufacturer of execution drug sodium thiopental, Hospira, ceased production of the substance due to a shortage of raw materials, forcing Departments of Corrections in executing states to source their drugs from overseas. Reprieve discovered that a company in Britain was supplying these chemicals and set out to stop British complicity in executions. The approved execution protocol in the United States consists of a cocktail of three drugs: sodium thiopental (also known as thiopental sodium and pentothal) supposedly anaesthetizes the victim, before pancuronium bromide paralyses the muscles and potassium chloride stops the heart.

On 25th October 2010, Jeffrey Landrigan was executed in Arizona using sodium thiopental imported from Britain. The lawyers of Edmund Zagorski, a man who has spent 28 years of his life on death row in Tennessee, subsequently contacted Reprieve with the information that the Tennessee Department of Corrections was seeking to purchase their own supply of sodium thiopental from the same company. Reprieve and lawyers Leigh Day & Co contacted members of the government, asking them to put in place emergency measures to prevent the export of the chemical, and thus stay Edmund’s execution. Business Secretary Vince Cable and Jeremy Browne MP on behalf of the FCO declined to take such a step.

Reprieve therefore filed for judicial review of the government’s failure to prevent British complicity in executions. Counsel for the government initially argued that it was not worth imposing an export ban as executing states would source their sodium thiopental from elsewhere, but on 29th November Vince Cable finally agreed to put in place a system of controls making it illegal to export sodium thiopental from the UK to the US.

Shortly afterwards, Reprieve discovered that the British company responsible was Dream Pharma, a tiny pharmaceutical wholesalers operating out of the back of a driving academy in Acton, and that it had already exported a substantial quantity of sodium thiopental – as well as the other two lethal injection chemicals – before the ban came into force. We asked Matt Alavi, the Managing Director of Dream Pharma, for his help in mitigating the damage done by his quest for profit; he had been selling sodium thiopental for between six and twelve times its recommended price, knowing that it was to be used in lethal injections. Mr Alavi refused, and the drugs he supplied have already been used to kill three people: Brandon Rhode and Emanuel Hammond in Georgia, as well as Jeffrey Landrigan.

Disturbingly, it seems that Dream Pharma’s sodium thiopental may not have been properly effective as an anaesthetic, and that Brandon and Emanuel may therefore have been in agony during their executions. Dr Mark Heath, a renowned lethal injection expert, filed a sworn declaration stating that the fact that Brandon’s eyes remained open throughout his execution was highly unusual and strongly suggested that he was not properly anaesthetized and therefore conscious throughout the process. He also wrote that:

“…if the thiopental was inadequately effective Mr Rhode’s death would certainly have been agonizing; there is no dispute that the asphyxiation caused by pancuronium and the caustic burning sensation caused by potassium would be agonizing in the absence of adequate anesthesia.”

Reprieve is currently asking Business Secretary Vince Cable to put in place strict measures regulating the export of pancuronium bromide and potassium chloride from the UK. We are also asking the governments of Austria and Germany, where sodium thiopental and its active ingredients are still manufactured, to follow Britain in imposing a full export ban on the drug. Hospira, which originally intended to begin manufacturing sodium thiopental destined for American penitentiaries in an Italian factory, announced in January that it would be ceasing all production of the drug.

The recent use of pentobarbital in executions is experimental and considered highly dangerous because the drug, a sedative, was not designed to be used as an anaesthetic. According to Dr. David Waisel, Associate Professor of Anaesthesia at Harvard Medical School: “The use of pentobarbital as an agent to induce anesthesia has no clinical history and is non-standard… the combination of significant unknowns… puts the inmate at risk of serious undue pain and suffering.”

About Reprieve

Reprieve, a legal action charity, uses the law to enforce the human rights of prisoners, from death row to Guantánamo Bay. Reprieve investigates, litigates and educates, working on the frontline, to provide legal support to prisoners unable to pay for it themselves. Reprieve promotes the rule of law around the world, securing each person’s right to a fair trial and saving lives. Clive Stafford Smith is the founder of Reprieve and has spent 27 years working on behalf of people facing the death penalty in the USA.

Reprieve has represented, and continues to represent, a large number of prisoners who have been rendered and abused around the world, and is conducting ongoing investigations into the rendition and the secret detention of ‘ghost prisoners’ in the so-called ‘war on terror.’

Reprieve is a charitable company limited by guarantee; Registered Charity No. 1114900 Registered Company No. 5777831 (England) Registered Office 2-6 Cannon Street London EC4M 6YH; Chair: Lord Ken Macdonald QC; Patrons: Alan Bennett, Julie Christie, Martha Lane Fox, Gordon Roddick, Jon Snow, Marina Warner