The Texas Department of Criminal Justice on Friday shot down allegations that it is manufacturing its own hard-to-find execution drugs after federal defense attorneys in an Oklahoma death row case accused the Texas prison system of doing exactly that.
A court filing reported late Thursday by Buzzfeed in the case of Oklahoma death row inmate Richard Glossip — scheduled for execution on Wednesday — claimed Texas is making its own pentobarbital, the drug it uses for lethal injections.
"The TDCJ is compounding or producing pentobarbital within its department for use in executions," wrote Patti Palmer Ghezzi, an assistant federal public defender for Glossip. "There are no known obstacles to ODOC (Oklahoma Department of Corrections) compounding or producing pentobarbital in the same manner as does TDCJ."
Ghezzi's filling included an invoice showing that TDCJ provided three vials of pentobarbital to the Virginia Department of Corrections.
But Texas prison spokesman Jason Clark said TDCJ gave Virginia the drugs, which were purchased, not made by the state prison agency.
"The agency’s supply of pentobarbital was purchased from a licensed pharmacy that has the ability to compound," Clark said. When asked for more information about the supplier, Clark declined, citing a new state law that allows information about execution drug providers to remain secret.
In 2013, Virginia gave Texas a supply of pentobarbital when its caches were running low.
Asked for proof of the claim that one of the nation's largest prison system now makes pentobarbital, Dale Baich, an assistant federal public defender in Arizona whose office is assisting its counterparts in Oklahoma, said only: "We stand by the statement in our pleading."
The Oklahoma court filing stems from a lawsuit filed on Glossip's behalf challenging that state's use of midazolam, a sedative, that his lawyers argue subjects death row inmates to cruel and unusual punishment. This past June, the U.S. Supreme Court ruled that the three-drug execution cocktail used by Oklahoma — midazolam, pancuronium bromide and potassium chloride — does not constitute cruel and unusual punishment. Its use, therefore, would not violate Glossip's Eighth Amendment rights. The high court said Oklahoma had made a good faith effort to find other drugs.
In order to prove that Oklahoma did not try hard enough to find more humane alternatives to its execution cocktail, Glossip's attorneys must establish that alternatives are available. Their claim that Texas is manufacturing pentobarbital essentially argues that Oklahoma could do the same and abandon its other execution drugs.
"Not only does the prisoner have to show the drug is bad but the prisoner has to put up a readily available alternative," said Baich. "It's one of the twisted consequences of the Supreme Court decision in Glossip."
To mix, or "compound," pentobarbital on site, TDCJ would be required to have a sterile compounding license issued by the State Pharmacy Board of Texas.
"We do not have a pharmacy license," Clark said.
Although the two medical centers contracted to provide health care to inmates — Texas Tech University and the University of Texas Medical Branch in Galveston — do have compounding licenses, Clark said neither of them has been asked to provide the drug. "We would not utilize them," Clark said.
Pharmacies with the appropriate licensing can mix a batch of pentobarbital, and Texas turned to compounding pharmacies in 2013 because manufacturers of the drug stopped selling to the prison system.
Earlier this year, state lawmakers passed a bill to keep the names of execution drug providers secret. The legislation, Senate Bill 1679, was intended to protect the companies providing the drugs from harassment and threats, according to author state Sen. Joan Huffman, R-Houston.
"Discussion in the public area has led to a chilling effect for companies who want to supply this compound to the state of Texas," she told The Texas Tribune in May. "There are very few doses left of the drug that’s currently being administered.”
During his tenure as Attorney General, Gov. Greg Abbott ruled in support of the prison system and said he was convinced drug suppliers could be subject to “real harm” if their names were made public. Abbott cited a state Department of Public Safety threat assessment as the primary factor in his decision.
For the last four years, Texas has relied on a variety of makeshift drug combinations for its executions. In 2011, the European Union put severe restrictions on exports of drugs commonly used in executions, while several domestic drug manufacturers began cutting off supplies. Later that year, TDCJ turned to in-state compounding pharmacies, which can mix certain drugs on-site. Those drugs are not approved by the federal Food and Drug Administration.