Concerns about Texas' dwindling lethal injection supplies coupled with questions about the age of the drugs have some advocates wondering whether the state is prepared to humanely carry out its recent uptick in scheduled executions.
Texas currently has 8 death dates and 9 doses of its execution drug - compounded sodium pentobarbital - for use in the Huntsville death chamber. What's more, a string of contradictory records from the Texas Department of Criminal Justice raises questions about whether some of those doses could be 3 years old, far older than previously reported and old enough that experts worry it could increase the chances of a "torturous" execution.
"The older the drug the greater the likelihood of a botched execution. Period," said Maurie Levin, a death penalty lawyer with experience in lethal injection litigation. "It becomes contaminated, corrupted, impotent, and all of those things can lead to a torturous execution."
In response to a public information request by the Houston Chronicle late last year, the state said that some of its current supplies were obtained in 2015 - even though supply logs appeared to show those drugs were no longer on hand. Officials declined to explain the discrepancy.
"Clearly, the reason they are not being forthcoming is because there is something they don't want the public to know," said Robert Dunham, executive director of the Death Penalty Information Center, a nonprofit that has been critical of the administration of the death penalty.
"That's bad policy and a bad practice," he added.
Earlier this year, hours before the execution of death row inmate John Battaglia of Dallas, Levin and a team of attorneys filed an unsuccessful lawsuit accusing the state of botching 2 executions in January by using too-old drugs.
In that claim - which a court shot down - attorneys reviewed TDCJ records and concluded that the department had been testing drugs just prior to their scheduled expiration to justify extending the shelf life.
Typically, the state's drugs have beyond-use dates at least a year in the future, but experts have repeatedly voiced suspicions about what the TDCJ does with those supplies when they're set to expire.
For instance, in July 2017, on the same day a batch of drugs was set to expire, the state sent eight doses back to the supplier and got 8 doses back the same day, listed in a log simply as "return from supplier." The state has previously declined to explain what, specifically, that designation indicates.
"An educated guess is that they're using the same drugs that they previously stated already expired," Levin told the Chronicle. "But because they insist on keeping this information secret, we don't know what they're doing."
Levin and other experts are concerned that TDCJ might simply extend the shelf-life of its current supplies as they near their expiration dates in July and November.
The questions about the age of supplies come as several states have reported difficulties in obtaining drugs for lethal injections because of reluctance by manufacturers to provide them for that use.
Megan McCracken, a capital litigator with the Lethal Injection Project at the University of California-Berkeley School of Law, voiced concerns after reviewing the state records.
"The logs and DEA forms appear to contradict each other and to obscure information about the state's execution drug supply," she said, condemning the "lack of transparency."
For attorneys and death penalty watchdogs, the possibility of using 3-year-old drugs is troubling.
The state's supplies of the deadly barbiturate are kept in 2.5-gram vials and in 5-gram vials, both of which are tracked on separate logs. The had-written 5-gram log and a Drug Enforcement Administration tracking form both show the prison system got 11 vials of drugs on Dec. 16, 2015.
But then in July 2016, all of the 5-gram supplies were "returned to the supplier," the logs show.
For 7 months, the department had no 5-gram drugs, but in February 2017 another 11 vials came in marked "new supplies," according to the logs.
So, on the one hand, records seem to show that the oldest 5-gram supplies date back to early 2017. But yet, other records indicate that the oldest 5-gram supplies date back to late 2015.
"The received dates are 12/16/2015 and 02/02/2017," the department wrote in an email, responding to a question about when the current supplies were received.
And last month, after a request for tracking forms corresponding "only" to drugs currently in supply, prison officials provided DEA forms dating back to December 2015, again suggesting the state still had those 3-year-old drugs on hand.
"It's like Scrooge and his ledger," said Dr. Joel Zivot, an associate professor of anesthesiology at Emory University School of Medicine who has testified as an expert in lethal injection litigation. "Maybe a lemonade stand would have a similar level of accountability."
Source: Houston Chronicle, Keri Blakinger, May 17, 2018
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