Update: After Tuesday night's botched execution in Oklahoma, Texas corrections officials say they have no plans to use midazolam in future executions. Midazolam was the first component of a three-drug cocktail administered to death row inmate Clayton Lockett yesterday. Read more about the execution here.
As KUT first reported in February, the state has supplies of midazolam on hand. But the Texas Department of Criminal Justice says in a statement that it "has no plans to change our procedures. Texas does not use the same drugs as Oklahoma as we use a single lethal dose of pentobarbital and we have done so since 2012.”
Attorneys for death row inmates in Texas have unsuccessfully tried to find out who is selling compounded pentobarbital to the state. They're suing in civil court and making a case to the Open Records Division of the Office of the Attorney General that TDCJ should disclose its source.
The botched execution in Oklahoma is "what litigators and inmates have been talking about," says Maurie Levin, a lawyer who represents death row inmates. "The possibility that something like this will happen when there's no transparency or openness, and when the prisons proceed with executions in this unbelievably unacceptable, secretive manner."
TDCJ says it must keep its source private to ensure a continued supply of the drug. The last time the agency was forced to disclose who sold it compounded pentobarbital, the Houston-area source - The Woodlands Compounding Pharmacy - was subject to harassment and threats and insisted TDCJ return its vials of pentobarbital. TDCJ did not return the drug.
Finding sources of pentobarbital has become increasingly difficult for death penalty states, especially since the European Commission imposed restrictions in 2011 on the export of drugs for use in executions.
Original story (Feb. 12): The Texas Department of Criminal Justice says it is exploring the use of alternate drugs in executions. The statement comes after KUT News confirmed through a Public Information Act request that TDCJ possesses a pair of drugs used in a controversial execution in Ohio last month: midazolam and hydromorphone.
"TDCJ continues to explore all options including the continued use of pentobarbital or an alternate drug(s) in the lethal injection process," TDCJ spokesperson Jason Clark said in an email.
In the Ohio execution in January, rapist and murderer Dennis McGuire was administered a combination of midazolam, a sedative, and hydromorphone, a pain-killer derived from morphine. McGuire gasped and struggled for at least 14 minutes before dying, according to news reports and an account by a Catholic priest who witnessed it.
It was the first time in the United States that someone was executed with a combination of those two drugs, according to law professor Deborah Denno at Fordham University, who has been researching lethal injection issues for twenty years.
Denno says attorneys for death row inmates could challenge executions based on the use of those drugs.
"I think the challenge could take a number of bases, but I think the key one is the cruel and unusual punishment clause," Denno said in a telephone interview. "That whoever is being injected with these drugs could suffer in the way that Dennis McGuire did."
Texas attorney Maurie Levin, who represents death row inmates, says the use of midazolam and hydromorphone would "absolutely" help her mount a defense for her clients.
"I can't predict what the outcome would be," she said in an interview last month. "I would certainly hope that TDCJ, having seen what happened in Ohio, would not try to move forward with using those drugs."
On Friday, Ohio Governor John Kasich delayed the state's next execution pending a review of McGuire's execution.
Death penalty states are facing a shortage of drugs as pharmaceutical companies become reluctant too sell them for the purpose of execution.
Texas is currently performing executions with pentobarbital purchased from a compounding pharmacy outside Houston. Woodlands Compounding Pharmacy demanded the state return the doses after its role as the supplier became public.
TDCJ's supply of midazolam and hydrmoprohone came from Pharmacy Innovations, a compounding pharmacy based in Jamestown, New York.
The next Texas execution is scheduled for March 17.