HUNTSVILLE, Texas — Texas’ prison agency is scrambling to find a supplier to replenish its inventory of execution drugs, which will be used up if the state goes forward with two lethal injections scheduled for this week and next.
Prison officials only have enough pentobarbital for the scheduled executions of Manuel Vasquez on Wednesday and Randall Mays on March 18, but they don’t know how they will conduct lethal injections on four others scheduled for April.
The Texas Department of Criminal Justice declined to say why it has not been able to obtain more pentobarbital from the same compounding pharmacy that provided the current batch of the powerful sedative last March. The state switched to that source several months after its previous supplier cut ties, citing hate mail and potential litigation after its name became public through an open records request from The Associated Press.
Prison officials have since waged a legal battle to keep the name of its latest supplier secret, but it’s unclear how much longer they can do so after a state judge last year ordered the agency to divulge the source. That ruling is on hold pending the outcome of the state’s appeal.
Prisons spokesman Jason Clark said the state’s lawyers have advised the agency not to comment on whether the current supplier has backed out or whether the judge’s order has affected its ability to find a supplier.
Although Texas, traditionally the nation’s busiest death penalty state, faces the most imminent deadline for replenishing its pentobarbital supply, other states are experiencing similar problems.
For example, South Carolina ran out of pentobarbital — part of its three-drug execution formula — when the drug expired in 2013, and the state has been unable to replenish its supplies because it can’t find a company willing to sell them anymore, Corrections Director Bryan Stirling recently told the AP. The state’s last execution was in 2011, and no new executions have been scheduled because cases are tied up in the appeals process.
If Texas executes Vasquez and Mays as scheduled, a new supply of pentobarbital will be needed by April 9 when Kent Sprouse is scheduled to die for the shooting deaths of a North Texas police officer and another man in 2002. Three other prisoners are set to follow Sprouse to the death chamber in April, and at least one more is set for May.
“We’re focused on multiple fronts,” Brad Livingston, the Texas agency’s executive director, told the AP last month before a prison board meeting in Austin. “We’re not ruling anything out, but clearly securing additional pentobarbital is part of our game plan.”
Livingston was traveling Monday and not available to provide an update.
While Texas prison officials administratively could change the lethal drug they use, a method change would require legislative action.
“At this time, it’s not a topic of discussion,” said state Sen. John Whitmire, who chairs the Senate Criminal Justice Committee.
Because pharmaceutical companies stopped selling U.S. prisons drugs for use in lethal injections, Texas and other death penalty states have turned to compounding pharmacies for made-to-order execution drugs.
Last week, a Georgia woman’s execution was delayed, then called off, when prison officials said they noticed the compounded pentobarbital planned for her lethal injection appeared cloudy, rather than clear. The Georgia Department of Corrections cited “an abundance of caution” in delaying punishment for Kelly Gissendaner, who would have been the first woman put to death in that state in 70 years, and a second inmate, Brian Terrell, who was set to die this week.
Texas has executed a nation-leading 521 inmates since 1982, when it became the first state to use lethal injection. It’s now been nearly three years since Texas began using pentobarbital as its only capital punishment drug, switching in July 2012 after one of the chemicals in the previous three-drug mixture no longer was available.
The last 17 Texas executions, stretching back to September 2013, have used compounded pentobarbital, and the last nine from compounding pharmacies the state has refused to identify.
Texas officials have insisted the identity should remain secret, citing a “threat assessment” signed by Texas Department of Public Safety director Steven McCraw that says pharmacies selling execution drugs face “a substantial threat of physical harm.” Law enforcement officials have declined to elaborate on the nature of those threats.
The U.S. Supreme Court, meanwhile, has refused to block punishments based on challenges to secrecy laws. However, the high court is reviewing Oklahoma’s lethal injection method, resulting in a hold on executions there, after a punishment using the sedative midazolam followed by two other drugs went awry. Oklahoma lawmakers now are considering a switch to nitrogen gas as the first alternative to injection while officials in other states are considering a return to firing squads or the electric chair.
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