Execution Drug Switch Ignites Controversy

A decision to change one of the drugs Texas uses for lethal injections in its busy execution chamber has sparked anew the controversy over the state’s death penalty.

Two inmates filed suit this week against the state corrections department over its closed-door decision-making process. Lawyers for the inmates also called for a federal investigation into whether the state had illegally obtained death penalty drugs used in nearly all of the state’s previous 466 executions since 1982. And the sole American manufacturer of the drug that Texas plans to use urged state officials not to use it in executions.

The Texas Department of Criminal Justice announced on March 16 that it would use pentobarbital in its three-drug cocktail to carry out lethal injections. Texas and other states with the death penalty were forced to find a substitute for the anesthetic sodium thiopental when its only American producer, Hospira Inc. of Lake Forest, Ill., announced in January that it would stop selling the drug.

Lawyers for Cleve Foster and Humberto Leal, the two inmates, sued the state on Tuesday, alleging that the department violated state transparency laws by making the drug decision in secret. Foster is scheduled for execution on Tuesday for the 2002 rape and murder of a Fort Worth woman. Leal, a Mexican citizen, is scheduled to die July 7 for the 1994 rape and murder of a 16-year-old San Antonio girl. The inmates are asking a state district judge to stop Texas from using pentobarbital, because they say the new process was adopted illegally.

The department declined to comment on the lawsuit. Documents made public in the lawsuit show that Rick Thaler, director of the Correctional Institutions Division at the department, did not consult doctors, pharmacists or any medical professionals before he made the decision to switch drugs.

In an affidavit, Thaler — who declined an interview request, citing the litigation — wrote that he learned from news accounts that Oklahoma had decided to use pentobarbital in its lethal injection procedure, a three-drug cocktail similar to the one used in Texas. He said he also read testimony he found online from Dr. Mark Dershwitz, an anesthesiologist whom Oklahoma hired to defend its use of pentobarbital in a court challenge (the U.S. Court of Appeals for the 10th Circuit has since upheld Oklahoma’s procedure). Thaler also read that Ohio used pentobarbital alone without incident in an execution last month.

“Based upon the information available to me and reported by my staff, I made the decision to change the execution protocol,” Thaler wrote. He signed off on the new procedure on March 15.

But documents from the lawsuit also show that as early as Feb. 9, Texas had ordered nearly $25,000 worth of pentobarbital — 39 doses, more than twice the total number of executions Texas conducted in 2010. The purchase was made weeks before officials of the Department of Criminal Justice repeatedly told The Texas Tribune, in response to questions, that no decision had been made on what drugs it would use in coming executions.

Michelle Lyons, a department spokeswoman, said the agency had been concerned about the drug’s availability. “We did not decide to use it in the lethal injection process until after we received the shipment,” she said.

In the lawsuit filed this week in Travis County District Court, the inmates’ lawyers argue that department officials should have abided by the Texas Administrative Procedure Act, which requires agencies to seek public input on rules changes. “The hallmark of the process has been its lack of transparency,” said Maurie A. Levin, one of the lawyers.

Had the public been allowed to participate, Levin said, Thaler might have been made aware of other expert testimony in the Oklahoma case that raised concerns about the use of pentobarbital in executions. Dr. David Waisel testified then that too little is known about the use of pentobarbital with other drugs to ensure a humane execution. Executions and the manner in which they are performed are “precisely the sort of decisions and procedures that should be aired in the light of day,” Levin said.

A day after filing the lawsuit, lawyers for the Texas death row inmates delivered letters to the U.S. Department of Justice and the Texas Department of Public Safety seeking an investigation into whether the state illegally obtained death penalty drugs. Purchase orders from the Department of Criminal Justice show that the agency uses a federal Drug Enforcement Agency registration number issued to the Huntsville Unit Hospital, which has been closed since 1983. If an investigation shows that the drugs were obtained illegally, Levin said, the DEA could revoke or suspend the state’s registration and make the state forfeit its supply of drugs.

Jason Clark, a spokesman for the criminal justice agency, said, “We are still reviewing the allegations, but are confident that we have not violated any state or federal law.”

Lundbeck Inc., the only producer of pentobarbital in the U.S., urged state officials in a letter this week not to use the drug. Lundbeck — based in Denmark, which opposes the death penalty — has also sent letters to other states using or planning to use pentobarbital in lethal injections.

“We’re dedicated to saving lives,” said Matt Flesch, a spokesman for Lundbeck. “To use our products to end lives contradicts everything we’re in business to do.” Clark said agency officials received the letter.

[Editor's Note: This post has been updated with a correction. An earlier version of this story incorrectly reported the status of Lundbeck Inc.'s letter to TDCJ about pentobarbital. The agency did receive the letter.]