From Texas Standard:
There is an execution scheduled for Wednesday in Oklahoma – but Texas is tied to the case.
According to a court filing, the lawyer for an Oklahoma death row inmate is claiming that his client shouldn't have to use an alternative to pentobarbital, one of the chemicals in the lethal injection cocktail. The filing argues that Texas is compounding its own pentobarbital and has sold the lethal injection drug to at least one other death penalty state: Virginia.
The lawyer in Oklahoma has cited a receipt for three vials of pentobarbital. Apparently, the State of Texas transferred them to Virginia back in August. But as Terri Langford with the Texas Tribune says, Texas doesn’t have to legally disclose where the drugs are coming from – thanks to a bill passed by the state legislature earlier this year.
"The Texas Department of Criminal Justice says it's not making its own pentobarbital,” Langford says. “It is buying it. It is not saying where it's getting it and by a new state law it doesn't have to right now."
Langford says there’s nothing illegal about Texas selling its pentobarbital – where the source is from – to other states. "In fact, in 2014 when Texas was low on pentobarbital, the state of Virginia – the Virginia Department of Corrections there – transferred or sent over pentobarbital to Texas," she says.
In a strange way, Langford says, this is returning the favor.
There have been issues with Oklahoma's death penalty procedure recently. In June, the U.S. Supreme Court ruled that the three-drug execution cocktail that the state uses there – midazolam, pancuronium bromide and potassium chloride – did not constitute cruel and unusual punishment. So why is there an argument against the state obtaining pentobarbital?
Langford says that’s a two-fold issue. There’s the lawyers fighting for Oklahoma death row inmate Richard Glossip and challenging his death sentence on the guilt/innocence phase. And then there are the federal public defenders who filed the lawsuit saying the use of midazolam is cruel and unusual.
The Supreme Court said in June as part of their ruling that the state of Oklahoma has made a good state effort to look for alternatives to the three-drug cocktail and didn’t find any. Langford says the lawyers are saying that the state did not make a good effort to look for alternatives.
Langford says the federal attorneys are asking why Oklahoma can’t just ask Texas for the pentobarbital. “It's a counter-intuitive argument,” Langford says. “Because we've got federal public defenders asking for an alternative lethal drug."
States across the nation have struggled to obtain execution drugs because pharmaceutical companies have been pressured to stop selling them to prisons for lethal injections. But Langford says the question everyone has – and no one knows the answer to – is whether that makes Texas a middleman for supplying other states with these drugs.
"There are other states that don't release the information exactly where they're getting it,” she says. “But beginning on September 1… all the information about the drugs and where they're coming from are now secret by law."