TDCJ Is Running Out of Execution Drugs. Again.

TDCJ Is Running Out of Execution Drugs. Again.
Photo by Ken Piorkowski

Manuel Vasquez, once an enforcer for the Mexican Mafia, was sentenced to die by lethal injection in 1999 for beating and strangling a San Antonio woman who failed to pay the gang's "dime," a 10 percent kick-back on drug sales. Tonight, if all goes as planned, he'll die after Texas prison officials shoot a large dose of compounded pentobarbital, a powerful barbiturate, into his veins.

Randall Wayne Mays, who in 2008 was convicted and sentenced to death for killing two Henderson County lawmen, will meet the same fate as Vasquez on March 18. After that, it's up in the air how or if Texas prison officials will kill the five remaining death-row inmates scheduled for lethal injection over the next two months.

As the AP reported this week, the Texas Department of Criminal Justice only has enough pentobarbital on hand for two more executions. It's unclear whether the state will somehow acquire more pentobarbital, switch to another lethal injection drug, or be forced to stall upcoming executions.

This isn't the first time Texas, home to the country's most active death chamber, has faced an execution drug crunch. Around 2011, Texas and other death penalty states had to ditch the commonly used three-drug execution cocktail because manufacturers of a critical component, the sedative sodium thiopental, refused to sell the drug to prison officials in death penalty states.

Texas eventually switched to using its current lethal-injection drug of choice, pentobarbital, but even that soon became difficult to acquire. In 2012, Texas and other death-penalty states were effectively forced to turn to compounding pharmacies, which aren't FDA-regulated, when drug manufacturers announced they'd no longer sell pentobarbital for use in executions.

The move to compounding pharmacies raised a host of new questions, particularly for appellate attorneys representing death-row inmates. How can we be sure states are carrying out quick, painless executions that don't violate the Eight Amendment ban on cruel and unusual punishment when execution protocols keep shifting? It's generally understood that the quality and potency of compounded drugs, unlike manufactured ones, can vary from batch to batch. Naturally, defense attorneys in Texas began to press for information about the chemicals prison officials planned to use to kill their clients.

As other states began to hide how they were acquiring execution drugs, Texas at first bucked the trend. Then Texas Attorney General Greg Abbott repeatedly ruled that prison officials had to disclose details about the state's execution drug supply, like the state's supplier or the size of the state's stockpile, to reporters, activists, and lawyers. Abbott even rejected dire warnings from TDCJ lawyers that compared the British anti-death penalty group Reprieve to violent prison gangs and that releasing information about the state's pentobarbital supply would create "a substantial risk of physical harm to our supplier."

Then, a couple of years ago it became pretty clear that compounding pharmacies wiling to sell the state execution drugs in secret wouldn't do so in public. When a Woodlands compounding pharmacy was outed as TDCJ's supplier, thanks to a public records request from the AP, the pharmacy's owner claimed TDCJ officials had told him "this information would be kept on the 'down low.'" The owner demanded that TDCJ give the drugs back and cut ties, citing threats, hate mail and potential litigation.

So last year, as TDCJ fought to keep the identity of its most recent supplier secret, prison officials asked Department of Public Safety Director Steve McCraw to investigate any threats the Woodlands pharmacy after it was outed as the state's source of execution drugs. Abbott then did a complete about-face, saying compounding pharmacies could remain anonymous due to a "substantial threat of physical harm." (Neither Abbott nor McCraw ever elaborated on any of the supposed threats the Woodlands pharmacy faced.)

The state apparently has an ample supply of the sedative midazolam, which could, technically, be used in lethal injections. But that drug is at the heart of a legal challenge out of Oklahoma that's about to go before the U.S. Supreme Court.

Attorneys for death-row inmates argue that the current secrecy surrounding Texas' supply of lethal injection drugs makes it impossible to ensure that the state can provide a quick, painless execution. They reference the executions of Michael Lee Wilson in Oklahoma (who, while strapped to the gurney, said, "I feel my whole body burning"), Dennis McGuire in Ohio (who, according to reports, struggled and made guttural noises, gasped for air and choked for about 10 minutes before dying), or last year's problematic execution of Clayton Lockett in Oklahoma (Lockett regained consciousness during his execution, writhed, moaned, groaned and took 43 minutes to die).


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