As lethal injection lawsuit continues, Texas replenishes execution drug supplies

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Even with a lawsuit over lethal injection drugs winding its way through court, Texas has managed to replenish its supply.

The last doses of the state’s execution drugs, pentobarbital, were set to expire in January, just days before a scheduled execution. A new record indicates that the supply won’t expire until July 2018, well past all scheduled executions.

It’s unclear whether the state purchased more of the drug or just established a new expiration date, and Texas Department of Criminal Justice spokesman Jason Clark declined to clarify.

Robert Dunham, director of the Death Penalty Information Center, wasn’t surprised to learn of the state’s renewed stock.

“While Texas has from time to time stated that it’s having difficulty obtaining pentobarbital, it has always been able to obtain the drugs to carry out executions,” he said. “When it’s needed the drugs, Texas has always found them.”

Since 2012, the state has used a single-drug protocol, administering a lethal dose of the barbiturate pentobarbital.

Texas came close to exhausting its supplies with executions still on the calendar in spring 2015. Ultimately, TDCJ managed to get more of the lethal drug, but Clark declined to offer details except to say that no executions in the Lone Star State have been delayed due a lack of execution drugs.

A records request last month showed that eight pentobarbital doses were set to expire in July 2017 and another 10 in January.

One of those doses was used in the July 27 execution of Taichin Preyor, leaving nine that expire just after the new year.

And now, instead of eight doses expiring on July 20, 2017, state logs list eight doses received that day as “return from supplier” and set to expire on July 20, 2018.

“Given the documents supplied by TDCJ designating that these vials were returned to the supplier and then the reemergence of vials with a brand new expiration date exactly one year out, an educated guess is that they’re using the same drugs that they previously stated already expired,” said Maurie Levin, a Texas death penalty lawyer with experience in lethal injection litigation. “But because they insist on keeping this information secret, we don’t know what they’re doing.”

Currently, the state is embroiled in a lawsuit over an intercepted order of another lethal injection drug, sodium thiopental. The powerful drug was part of the execution process until 2011 when dwindling supplies forced the state to replace it with pentobarbital as part of a three-drug cocktail.

The following year, the state switched from a three-drug mix to a single dose of pentobarbital.

But when pentobarbital suppliers started drying up, Texas started searching for other lethal injection drugs.

That search landed Texas in hot water when authorities at Bush Intercontinental Airport seized 1,000 vials of sodium thiopental en route to Hunstville from India-based supplier Harris Pharma.

The U.S. Food and Drug Administration later said the drugs were improperly labeled and not approved for injection in humans, but TDCJ this year filed a lawsuit demanding the return of what state officials deemed an “unjustified seizure.” 

Although the detained drugs appear to have expired in May, Texas has continued its legal action, which also seeks to lift the FDA’s ban on importation of sodium thiopental for law-enforcement use.

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