How will the state of Texas continue to kill people?
Last week, the federal Food and Drug Administration tentatively banned Texas prison officials from importing a particular type of drug used to execute death row convicts. The April 15 letter, first reported by the Austin American-Statesman, comes after the feds blocked Texas from illegally importing shipments of the drug sodium thiopental from India last year.
The move raises the question not only of how Texas will continue to execute the condemned once its current supply of death drugs runs out, but what protocol prison officials will use in the future as it becomes harder and harder for death penalty states to get their hands on execution drugs.
In many ways, the drugs used to carry out lethal injections are now at the heart of the debate surrounding capital punishment in the United States. Texas, like many other states, for a long time used a standard three-drug cocktail to execute prisoners. But that was until manufacturers of the critical component, the sedative sodium thiopental, stopped selling the drugs to states that would use them in executions — largely because of pressure from anti-death penalty advocates. In 2011, the Texas Department of Criminal Justice switched to its current drug of choice, pentobarbital, but pretty soon even that was hard to get.
Texas eventually turned to compounding pharmacies, which aren't regulated by the FDA, as a supplier. But it soon became clear that those pharmacies would only sell to the state in secret. When the Associated Press outed the Woodlands Compounding Pharmacy as the state's supplier of execution drugs in 2013, the pharmacy quickly backed out of the deal, demanding the state return the vials of pentobarbital. After the dust-up, then-Attorney General Greg Abbott did a complete about-face on the issue, ruling that pharmacies that sell the state drugs for lethal injections could do so in secret (last session, the Texas Legislature made such secrecy the law).
The drug crunch and the shift by Texas and other states toward secret suppliers have raised a host of issues now playing out in courts across the country. Pentobarbital apparently isn't always that easy for Texas officials to acquire. While TDCJ spokesman Jason Clark told us the state has enough of the stuff for the eight remaining executions scheduled for this year, last year it almost ran out before another secret supplier swooped in. Clearly, the state's current source is shaky enough for prison officials to look elsewhere for a Plan B. Last year, as Buzzfeed News first reported, they even tried to import drugs from India. Attorneys say there are signs Texas may have even tried to manufacture the drugs on its own and ship them to other death penalty states (which prison officials here deny).
Maurie Levin, a well-known death penalty attorney in Texas who has challenged the state secrecy surrounding the execution drugs, says prison officials could just shift to another, more controversial drug: midazolam, the drug Oklahoma officials used in the botched 2014 execution of convicted murderer Clayton Lockett, a drug that some experts claim cannot produce the deep, coma-like state needed to ensure executions don't violate the Constitution's Eighth Amendment ban on cruel and unusual punishment. Texas reportedly has a stockpile of the stuff on hand in case its other options fall through.
While appellate attorneys have argued that death row inmates have become the criminal justice system's guinea pigs, last year the U.S. Supreme Court ruled 5-4 in upholding midazolam as an approved execution drug. Still, in his dissent, Justice Stephen Bryer used the case as a vehicle to question the death penalty itself, urging his fellow justices to "reopen the question" of whether capital punishment is, in practice, constitutional.
Meanwhile, Clark at TDCJ says there are "no immediate plans" to use anything but pentobarbital to execute inmates in Texas for the foreseeable future. However, given the current state of capital punishment in the United States, that could very well change once prison officials run through their current batch of the drug. In a statement, Clark said, "TDCJ cannot speculate on the future availability of drugs, so we continue to explore all options including the continued use of pentobarbital or alternate drugs to use in the lethal injection process."
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