Facing Short Supplies of Execution Drugs, States Are Mixing Things Up. What's Next for Texas?

Texas is down to its last dose of lethal injection drugs. On April 9, pending court action, Kent William Sprouse -- who killed a Ferris police officer and another man in 2002 -- will be given that three-drug cocktail and Texas will become one of a number of states forced to improvise.

Just this week, Utah Governor Gary Herbert signed legislation that will allow the execution of condemned inmates by firing squad should his state continue to struggle to acquire lethal injection drugs. New Hampshire offers hanging as a backup to lethal injection, while Oklahoma has the return of the electric chair as a contingency should lethal injection ever be ruled unconstitutional. The Oklahoma Senate is also considering a bill that would allow the state to kill inmates by asphyxiation with nitrogen. Tennessee made the electric chair its backup plan last year.

Texas' current lethal-injection drug was adopted in 2012 after acquiring sodium thiopental, pancuronium bromide and potassium chloride -- the state's longstanding three-drug cocktail, became difficult. Now, pentobarbital, the only drug in the state's execution regimen, has become nearly impossible to acquire.

"We're exploring all options," Texas Department of Criminal Justice spokesman Jason Clark told the Texas Tribune earlier this month. "This is a nationwide issue that departments of corrections are faced with."

The only bill that's been proposed in the current session that might help the execution pipeline get flowing again is Amarillo Republican Representative John Smithee's proposal to allow manufacturers who sell lethal injection drugs to the state to remain anonymous. Dr. Jasper Lovoi, who owns a Houston compounding pharmacy, asked Texas to return a batch of pentobarbital he sold the state after his name was made public. Drug companies and compounding pharmacists do not like to be associated with executions, so allowing them to remain anonymous might help Texas get additional pentobarbital.

"We've literally reached the point where we can't do executions if we can't obtain the drugs," Smithee told the Houston Chronicle last week.

Texas may not be able to switch to an alternative method of execution without legislative action -- and the current session is passed the filing deadline -- but that doesn't mean it hasn't been making backup plans. According to documents obtained by the Tribune, the state has acquired a supply of midazolam, a drug that's been used in botched executions in Oklahoma and Ohio. The TDCJ has not said what it plans to do with the midazolam, but the agency did say last year that it had no plans to change the pentobarbital protocol.

Even if Texas were to switch to midazolam, the change could be short lived. Akorn, the company that makes the drug, issued a statement in February saying it doesn't want its drug used in executions.

"Akorn strongly objects to the use of its products to conduct or support capital punishment through lethal injection or other means," the company. "To prevent the use of our products in capital punishment, Akorn will not sell any product directly to any prison or other correctional institution and we will restrict the sale of known components of lethal injection protocols to a select group of wholesalers who agree to use their best efforts to keep these products out of correctional institutions."

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Stephen Young has written about Dallas news for the Observer since 2014. He's a Dallas native and a graduate of the University of North Texas.
Contact: Stephen Young