The drug Texas uses to execute more prisoners than any other state may be expired, say lawyers who argue its use for lethal injections can cause severe pain and suffering.
Texas used the same potentially outdated barbiturate – pentobarbital - to execute Juan Garcia on Tuesday. Three more of the state’s prisoners have death dates scheduled in the coming weeks, also using the drug.
This comes as an autopsy revealed Oklahoma used the wrong drug, potassium acetate instead of potassium chloride, during a January execution in which prisoner Charles Warner’s dying words were, “my body is on fire”. A similar mishap was avoided last week just before the state carried out the lethal injection of convicted murderer Richard Glossip. Governor Mary Fallin responded by staying his execution and delaying future ones. Today, Arkansas halted lethal injections due to concerns about the state’s lethal injection method. Montana did the same this week, as did Mississippi earlier this year.
New details about the drug Texas uses for its single-drug execution method came to light ahead of a trial that will be the first in the state to examine the secretive procedure before a federal judge in open court.
Among the evidence Texas has handed over in the case is a redacted laboratory sheet detailing the potency and sterility testing it conducted on compounded pentobarbital it received this April. The “use by date” assigned after the test was 9 February 2016.
But a pharmaceutical expert witness cited by lawyers for three death row prisoners argues the “beyond use date” for compounded preparations is usually much shorter under accepted scientific guidelines: 24 hours if it is stored at room temperature, and three days if it is kept refrigerated. If the drug is kept in a frozen, solid, state, it can last for 45 days.
While the compounded pentobarbital is tested once before its delivery to the Texas prison system, the state requires no additional testing before using it, and no autopsy after a prisoner is put to death.
Texas provided the purchase and compounding dates after the lawyer’s requests were supported by federal district judge Lynn Hughes, but has balked at handing over other details. It also asked to have the case dismissed. But Judge Hughes made clear his desire to push ahead.
“I’m not unraveling this. We have a real problem,” said Hughes during a hearing last month. “[I]t is important to the Court, to the rule of law, to the public perception of the State of Texas and this process, and the claimants that we address the real issues and know what’s going on.”
Texas does not require officials to announce changes to its execution protocol. In 2012, officials switched to using pentobarbital provided by an unregulated compounding pharmacy instead of its FDA approved manufacturer. But the protocol still says “[t]he lethal injection drug shall be mixed and syringes shall be prepared by the members of the drugs team”.
In the litigation underway, the state confirmed the solution is now ‘mixed’ before it is picked up somewhere in Texas and driven in an air-conditioned car to the prison.
The case could go to trial next month. It is unclear yet if the state will continue executions while the hearing is underway.
During a death row interview with The Guardian, Perry Williams, one of the plaintiffs, said he just knew the basic details about how he would be put to death for his role in the 2000 robbery and murder of a Houston medical student.
“I understand they’ll give me a lethal dosage of a cocktail that will kill me,” Williams said. “Give it to me till I die.”
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