Texas Finds a New Drug Dealer

Texas prison officials said Wednesday they've acquired a new "small supply" of pentobarbital, the barbiturate Texas uses to execute prisoners by lethal injection, according to the AP. That means Texas has at least enough lethal-injection drugs on hand to kill all four prisoners slated for execution in April.

And, as is becoming standard practice in death penalty states across the country, Texas won't disclose the supplier of its new batch of death drugs.

The Texas Department of Criminal Justice earlier this month revealed that it only had only enough pentobarbital on hand to get through two scheduled executions. The drug crunch faced by Texas and other death-penalty states is due in large part to drug manufacturers that years ago stopped selling states drugs for use in lethal injections. Texas and other death-penalty states were left scrambling to find drugs that could be used to carry out executions.

Around 2011, Texas ditched an until-then commonly used three-drug execution cocktail because manufacturers of a critical component, the sedative sodium thiopental, refused to sell the drug to prison officials. TDCJ eventually switched to its current drug of choice, pentobarbital, but even that soon became difficult to acquire, so Texas had to turn to so-called compounding pharmacies, which aren't regulated by the FDA.

Under Greg Abbott, the Texas Attorney General's Office repeatedly ruled that TDCJ couldn't keep the source of its execution drugs a secret, that prison officials had to disclose basic information about the state's lethal injection drug supply -- like the state's supplier or the size of its stockpile -- to reporters, activists, and death-penalty lawyers.

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

So last year Abbott did a complete about-face, saying compounding pharmacies could remain anonymous due to a "substantial threat of physical harm." Neither Abbot nor TDCJ nor Department of Public Safety director Steve McCraw ever elaborated on what, exactly, those threats are, so it's difficult to know how seriously to take their dire warnings -- TDCJ lawyers, after all, have in the past compared the British anti-death penalty group Reprieve to violent prison gangs when arguing for secrecy.

The move to compounding pharmacies has raised a host of largely unanswered 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.

For that reason, attorneys in Texas have been pressing for information about the chemicals prison officials want to use to kill their clients, and last year a state judge ordered TDCJ to divulge the source of its lethal injection drugs. That ruling is on hold since the AG's office appealed the case (the state's deadline to file arguments in the case is late next month).

So, of course, we know very little about this latest batch of lethal injections drugs TDCJ has acquired. TDCJ spokesman Jason Clark told the AP only that prison officials bought the drugs "from a licensed pharmacy that has the ability to compound."

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Michael Barajas
Contact: Michael Barajas