Texas, Fresh Out of Pentobarbital, Begins Experimenting With Execution Drugs

UPDATE: After this item ran, we sent a question to Texas Department of Criminal Justice public information director Jason Clark, asking him -- not to put too fine a point on it -- why Texas doesn't just switch to an alternative method of execution altogether, like the electric chair. The short answer is that to do so would require the Legislature to change the law, but Clark also sent us a statement released this morning concerning the drug used in the state's lethal injection protocol. Here it is:

The Texas Department of Criminal Justice will continue to use pentobarbital to carry out executions. The agency has purchased a new supply of the drug from a Texas pharmacy that has the ability to compound. The purchase will allow the agency to carry out all currently scheduled executions.

Switching the method of execution (from lethal injection to something else) would require legislative action. The agency has not considered changing the method of execution.

Below is Texas Government Code 43.14.

"Whenever the sentence of death is pronounced against a convict, the sentence shall be executed at any time after the hour of 6 p.m. on the day set for the execution, by intravenous injection of a substance or substances in a lethal quantity sufficient to cause death and until such convict is dead, such execution procedure to be determined and supervised by the Director of the institutional division of the Texas Department of Criminal Justice."

ORIGINAL POST: The state of Texas, in its unrelenting pursuit of justice, has all but exhausted its supply of pentobarbital, its favored execution drug. It was scheduled to run out last week with the punishment of Arturo Diaz, who was convicted 13 years ago of stabbing a man 94 times in the chest during a robbery of a McAllen apartment.

For mysterious reasons the Texas Department of Criminal Justice declined to explain to Reuters, that didn't happen, with an agency spokesman telling the wire service, "We have not changed our current execution protocol and have no immediate plans to do so."

Unless, that is, a federal judge rules otherwise. As the Austin American-Statesman's Mike Ward reports, three condemned killers, one of whom is set to die a week from today, filed a lawsuit in Houston on Tuesday claiming the state is poised to begin experimenting with new, untested execution drugs.

See also: Today, We Find Out if Texas' Single-Drug Lethal Injection Actually Is More Humane

Neither the inmates nor their attorneys know exactly what drugs TDCJ plans to send pumping through the inmates' veins. The agency has been "obstructionist and secretive," they allege, blocking their efforts to obtain information. But they have their suspicions.

According to documents the plaintiffs obtained by through the state's Public Information Act, the TDCJ is currently seeking or in possession of four potential execution drugs. They are:

Propofol -- The drug that killed Michael Jackson. Intended to be used to induce general anesthesia, it's never been used by any state for lethal injection and "runs a grave risk of causing excruciating pain upon injection." Missouri, with the OK of that state's Supreme Court, has plans to do so this month despite fears that this will lead to a shortage.

The lawsuit says that Hospira, which sold Texas its supply of propofol, is seeking to have the drug returned, since it "does not wish to see its drugs used for executions."

Midazolam and hydromorphone -- Ohio's execution protocols allow for a cocktail midazolam and hyrdromorphone -- the former is a sedative typically used for the treatment of seizures, insomnia and other conditions, the latter a painkilling derivative of morphine -- to be injected into the muscles of an inmate's upper arm, thigh or buttocks. Kentucky's protocol calls for the compound to be injected directly into the veins.

According to the lawsuit, TDCJ purchased its supply of the drugs under misleading pretenses. On its purchase order to Pharmacy Innovations, it listed the "Huntsville Unit Hospital" as the entity that was to receive the drugs."The Huntsville Unit Hospital has not existed since 1983," the suit says. "Pharmacy Innovations was completely unaware that the drugs sold to TDCJ/the Huntsville Unit Hospital were purchased with the intent to use them for lethal injections."

Compounded pentobarbital -- Chemically speaking, on-demand batches of compounded pentobarbital would be no different from the stuff Texas used to get from pharmaceutical companies. But, as the lawsuit points out, compounding pharmacies are not well regulated by the FDA, and "[p]roblems with compounded drugs and compounding pharmacies abound." In other words, there'd be no guarantee the inmates wouldn't go painfully.

According to the lawsuit, TDCJ officials also tried to go through Pharmacy Innovations for its supply of compounded pentobarbital, again listing the long-shuttered Huntsville Unit Hospital as the recipient, only to be rebuffed by the company, which canceled the order once it discovered the drug was intended for executions.

The inmates stake their claim on the Eighth Amendment's prohibition on cruel and unusual punishment. It will be up to U.S. District Judge Lynn Hughes to decide whether this new batch of drugs, untested as they are, rise to that level. And she'll have to make an initial ruling soon. Michael Yowell is asking for a temporary injunction delaying his scheduled October 9 execution.

First, though, TDCJ will have to say what drug or drugs it plans to use to kill Yowell.