Confronted with a shortage of killer drugs, Texas executioners face a lawsuit for manufacturing their own pentobarbital
Photo taken by Flickr user Mads Bødker.
By Ann Neumann
For half a dozen years now, executing states have had more than persistent death-row lawyers and waning public opinion to worry about. Good execution drugs are increasingly hard to come by, putting wardens tasked with capital punishment in a hard place. Enterprising wardens in the state of Texas have taken the matter into their own hands by formulating the execution drugs themselves, complete with Department of Criminal Justice labels, a lawsuit on behalf of a death row inmate, Richard Glossip, has charged.
Glossip, who is scheduled to be executed by lethal injection tomorrow in Oklahoma, tried desperately to stay his execution this week by showing that a more effective drug than what Oklahoma has on hand, midazolam, is available. Midazolam is responsible for a handful of botched executions last year, including that of Clayton Lockett in Oklahoma. Lockett writhed and moaned for more than forty-five minutes after being injected. His execution was finally stayed but he died shortly after. Media, lawyers and the public were appalled by Lockett’s ordeal, which further discredited lethal injection’s reputation for easy and painless executions.
Although the US Supreme Court last June approved midazolam’s use, so long as the state has done its best to obtain other drugs, lawyers cite Lockett’s experience and others’ as proof that lethal injection with midazolam is “cruel and unusual punishment,” and therefore unconstitutional. Then last week Buzzfeed reported that the Texas Department of Criminal Justice admitted to selling Virginia pentobarbital in return for Virginia having provided Texas the same drug in 2013. Images of the receipt were posted on the internet. In a last-ditch effort to save Glossip’s life, his lawyers have charged that Oklahoma did not try hard enough to find more humane alternatives to the midazolam cocktail.
Virginia will use drugs from Texas to execute Alfredo Prieto on Thursday. That state’s governor, Terry McAuliffe refused to issue a reprieve despite consistent claims that Prieto is mentally disabled.
For years states have struggled to get their hands on a reliable source of execution drugs. Ohio switched to a one-drug protocol in 2009 after it failed to acquire any pentobarbital. Several states have since switched to the one-drug protocol, using it to execute more than sixty prisoners. But getting their hands on even one effective drug has proven a macabre effort. In 2011, the US manufacturer, Lundbeck, asked Ohio to stop using Nembutal (pentobarbital sodium) for lethal injection, saying the use by wardens “contradicts everything we are in the business to do.”
States have since wrangled for supplies from each other. Oklahoma asked Texas for drugs in 2010, but Oklahoma was all out. The next year Texas asked Oklahoma, which had since obtained them. The state’s assistant attorney general quipped that he was willing to provide them if, “TX promises to take a dive in the OU-TX game for the next 4 years,” the Colorado Independent reported. In 2014, wardens in Missouri reportedly paid an unnamed pharmacy $11,000 for pentobarbital (“I took them cash,” the warden testified in court, according to Texas Monthly). To protect their drug sources (and administrators), some states have passed laws that enforce secrecy.
Glossip’s lawyers say that Texas “is compounding or producing pentobarbital within its department for use in executions,” although Texas has denied manufacture of the drug itself, saying that it simply labeled the doses. No word yet on what Texas is charging other states per dose.
Ann Neumann has written for Bookforum, Lapham’s Quarterly, New York Law Review, The Nation, Guernica, and others. Her monthly column, “The Patient Body,” about issues at the intersection of religion and medicine, appears at The Revealer, a publication of The Center for Religion and Media at New York University, where she is a visiting scholar. She is on Twitter @otherspoon.