Texas Is Now a Drug Dealer, According to Court Filing

The last time state prison officials revealed their supplier of death penalty drugs, that source dried up.

Two years ago, The Woodlands Compounding Pharmacy backed out of its deal with the state and demanded prison officials return its vials of pentobarbital, the sedative Texas uses to execute inmates. A public records request from the Associated Press outed the pharmacy as the state's source for the lethal injection drug.

“[I]t was my belief this information would be kept on the 'down low,'” the pharmacist wrote to state prison officials. “I find myself in the middle of a firestorm that I was not advised of and did not bargain for.”

As in other death penalty states, Texas prison officials had turned to unregulated compounding pharmacies after drug manufacturers, largely due to mounting pressure from anti-death penalty activists, stopped selling states drugs for use in lethal injections. When the Woodlands Compounding Pharmacy backed out as Texas's supplier, it became pretty clear that even pharmacies that might provide the drugs in secret wouldn't do so in public. Then-Attorney General Greg Abbott, at the urging of Texas prison officials, did a complete about-face on the issue and ruled that the state's death-drug supplier should be kept hidden.

A judge last year disagreed, ruling that such information should be publicly-available. But since that case has been tied up in appeals, the questions has remained each time Texas somehow finds more pentobarbital to kill death row inmates: Who's selling Texas the drugs?

The answer may be nobody. According to a court filing in an Oklahoma case, Texas is compounding its own pentobarbital and has sold the lethal injection drug to at least one other death penalty state, as Buzzfeed News first reported last night.

The matter came up in a Thursday court filing by attorneys for Richard Fairchild, an Oklahoma man scheduled to be executed for murdering his girlfriend's 3-year-old child in 1993. In the filing, Fairchild's attorneys argue that Oklahoma prison officials should consider other lethal injection options besides midazolam, the drug used in the state's botched execution of Clayton Lockett last year.

As part of the filing, Fairchild's attorneys attached a purchase order from the Virginia Department of Corrections dated August 26, 2015. On the order, the supplier of three 50-milliliter packages of pentobarbital is listed as “TX Dept of Criminal Justice.”

“The TDCJ is compounding or producing pentobarbital within its department for use in executions,” the filing states. “There are no known obstacles to [the Oklahoma Department of Corrections] compounding or producing pentobarbital in the same manner as does TDCJ.”

It's not clear if Texas has given the drug to any other death penalty states. Buzzfeed reports that a TDCJ spokesman wouldn't comment on how the pentobarbital was made, but did confirm that Texas provided the drug to Virginia prison officials. The labels on the vials, shown in a photograph attached to the Oklahoma court filing, don't identify a pharmacy and show an April 2016 expiration date. 

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