Even as the Texas Department of Criminal Justice revealed it's nearly out of its current lethal injection drug, pentobarbital, the agency has stockpiled the sedative midazolam, which could be part of a backup execution method in Texas. But the drug is at the center of a legal challenge in Oklahoma before the U.S. Supreme Court.
TDCJ received 40 vials of midazolam last summer that will not expire until next year. Another 30 vials of the drug purchased in 2013 expired on March 1.
Department officials have declined to say whether the agency has plans to use midazolam in Texas executions. Several states use midazolam as the first in a series of drugs injected into an inmate during an execution.
"We're exploring all options," TDCJ spokesman Jason Clark said.
The department announced late Monday that it has only enough pentobarbital for two executions scheduled for this month. On Wednesday, convicted Mexican Mafia hitman Manuel Vasquez, 46, is scheduled to be put to death for the ordered killing of a Bexar County woman. On March 18, Randall Mays is set to die for fatally shooting two police officers in Henderson County.
The TDCJ is the latest state department of corrections to announce it has a pentobarbital shortage. Another state, South Carolina, ran out of pentobarbital in 2013, the Associated Press confirmed this week.
"This is a nationwide issue that departments of corrections are faced with." Clark said of the diminished pentobarbital supply in Texas, a drug officials switched to in 2012 after drug shortages forced TDCJ to abandon a three-drug protocol.
If TDCJ officials were to switch to midazolam, they would only have to update their execution procedure document know as a “protocol.” To do that would require only the approval of TDCJ's director of correctional institutions, Bill Stephens, though the department has usually informed the public ahead of any switch in lethal injection drugs.
In Oklahoma, officials switched to a mixture of midazolam and two other drugs for the April 29, 2014, execution of Clayton Lockett. It was the first time midazolam was used for an execution in that state. Lockett did not die until 43 minutes after the drugs were injected, and a review found that the IV line was incorrectly inserted.
In January, the Supreme Court halted executions in Oklahoma until it could review a challenge filed by inmates saying that the state’s protocol violates constitutional protections against cruel and unusual punishment. Lawyers for the Oklahoma inmates have argued that midazolam does not properly anesthetize the inmate, which they say is cruel and unusual punishment. A ruling is expected later this spring.
Midazolam was also used in the Arizona execution of Joseph Wood last July. He didn’t die for two hours after the injection. A review in that case found no explanation of what went wrong.
The pentobarbital obtained by TDCJ comes from compounding pharmacies, but it is not clear whether more of these facilities — which mix the drug— are refusing to fill TDCJ's order for the drug or whether supplies of the raw chemicals needed to make pentobarbital are also disappearing.
The Professional Compounding Centers of America, or PCCA, of Houston, told The Texas Tribune last year that it stopped providing the raw materials for pentobarbital to its compounding pharmacy customers in January 2014.
In September 2013, TDCJ turned to compounding pharmacies, which are allowed to mix or "compound" drugs on site, for its lethal injection drugs after manufacturers stopped providing pentobarbital to U.S. prison systems.
But since the identity of one of the compounding pharmacies was released to the public more than a year ago, the Texas prison system has worked to keep the names of the current provider or providers secret.
Last December, an Austin judge ordered the agency to reveal the name of the compounding pharmacy or pharmacies providing the drug. That case has been appealed by TDCJ to the 3rd Court of Appeals, where it has yet to be heard.
The names of the pharmaceutical companies providing lethal injection drugs were long made public in Texas.
But that changed when TDCJ was forced to turn to compounding pharmacies in 2013.
Last May, then-Attorney General Greg Abbott sided with TDCJ after the agency secured a "threat assessment" from the Texas Department of Public Safety stating that the pharmacies "by design are easily accessible to the public and present a soft target to violent attacks."
If the agency names the pharmacy-supplier, DPS reasoned, it would present a "substantial" threat of physical harm to the pharmacy.