Texas continuing executions with compounded drugs

Changes by Texas and other states to the drugs used in executions and restrictions on information about suppliers of the drugs have resulted in litigation challenging the executions. In Texas, some critics have called for a halt to executions involving a drug currently obtained through a compounding pharmacy.

Legal challenges. Legal challenges to Texas’ use of compounded drugs so far have been unsuccessful in halting executions. The challenges have included requests for details about the drugs to be used and requests for the Texas Department of Criminal Justice (TDCJ) to be required to disclose its source for the drugs. In May 2014, the U.S. 5th Circuit Court of Appeals denied a request for a stay of execution that challenged Texas’ use of compounded drugs. The same court later postponed the execution based on a separate appeal centering on issues of mental retardation. The next scheduled execution in Texas is set for August 8.

In May 2014, Texas Attorney General Greg Abbott said that TDCJ did not have to release to the public information identifying the pharmacy supplying execution drugs to the state. The opinion, OR2014-09184, referred to a Department of Public Safety threat assessment saying that drug suppliers face a substantial threat of personal harm.

After some manufacturers decided to quit producing the drugs used in executions or to stop supplying them for that purpose, Texas and other states had difficulty obtaining the drugs and began using other drugs or drugs made by compounding pharmacies, which create drugs by mixing their ingredients.

Executions in other states have been delayed after changes to drug protocols. Some states have instituted policies designed to keep information about the suppliers or producers of execution drugs from being made public. Debate in some states has included whether lethal injection should be replaced with another method of execution.

Current Texas law on lethal injections. From 1982 until March 2011, Texas used a three-drug combination for lethal injections. In March 2011, TDCJ replaced one of the three drugs with pentobarbital and in July 2012 began using only pentobarbital for executions. In October 2013, Texas began using pentobarbital made by a compounding pharmacy. The Texas State Board of Pharmacy has some oversight over compounding pharmacies, but the drugs they produce are not approved by the U.S. Food and Drug Administration.

Texas Code of Criminal Procedure, Art. 43.14, requires that death sentences be carried out by intravenous injection of a substance or substances in a lethal quantity sufficient to cause death and requires the director of the correctional institutions division of TDCJ to determine and supervise execution procedures.

Because neither the drug protocol nor the method by which the drugs are to be obtained is specified in statute, they could be changed in multiple ways: TDCJ could revise its administrative procedures, the TDCJ board could adopt a directive, the Legislature could enact a statute, or a court could issue an order.

Supporters of the current method of execution say death penalty opponents are using objections to the current protocol as a red herring to halt the implementation of death sentences. They say the drug currently used is humane and is used in other states and that it is acceptable to obtain it from compounding pharmacies. Supporters say TDCJ should continue to set the drug protocol through administrative procedures so that the agency can respond quickly to court rulings or other issues that may arise with the drugs.

Critics of the current method of execution say the efficacy of using pentobarbital from a compounding pharmacy in executions is unknown and that its production is not subject to adequate oversight. They say this could result in pain and suffering, making the drug’s use cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution. Critics say the way Texas adopts its legal injection procedure lacks transparency and public oversight.

By Kellie A. Dworaczyk

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