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September 26, 2015
Latest Glossip kerfuffle concerns whether Texas could make and export "better" execution drugs
The latest intriguing issue to arise in the ugly world of execution administration concerns whether Texas could supply "better" lethal injection drugs to other states. This BuzzFeed article about the latest filing in the (never ending?) Glossip case explains:
The state of Texas is making its own execution drugs and has sold them to at least one other death penalty state, an inmate facing execution in Oklahoma alleges in a court filing Thursday. His attorneys point to documents that show the Texas Department of Criminal Justice sold pentobarbital to Virginia in late August.
Pentobarbital is a sedative that many death penalty states, including Oklahoma, have claimed is impossible for them to get their hands on. As a result, some states have turned to midazolam, a drug that critics argue is significantly less effective. The U.S. Supreme Court upheld the use of midazolam in executions this June.
The records submitted as part of the new filing show that Virginia received 150 milligrams of the drug. Under the heading “Name of Supplier,” the Texas Department of Criminal Justice is listed. The labels do not identify the pharmacy that prepared the drug. However, the lawyers for the Oklahoma inmate state that the labels were created by the Texas Department of Criminal Justice, which they also allege “is compounding or producing pentobarbital within its department for use in executions.”
On Friday, Texas confirmed to BuzzFeed News that it sent the execution drugs to Virginia. A spokesman said it was to repay Virginia for having given Texas drugs in the past. “In 2013, the Virginia Department of Corrections gave the Texas Department of Criminal Justice pentobarbital to use as a back up drug in an execution,” spokesman Jason Clark said. “Virginia’s drugs were not used.”
“The agency earlier this year was approached by officials in Virginia and we gave them 3 vials of pentobarbital that [were] legally purchased from a pharmacy. The agency has not provided compounded drugs to any other state. Texas law prohibits the TDCJ from disclosing the identity of the supplier of lethal injection drugs.”...
The lawyers raise these issues to make the argument that Oklahoma could avoid the use of the controversial midazolam drug in its executions. It could do so, they argue, by purchasing pentobarbital from Texas, like Virginia, or by “compounding or producing pentobarbital in the same manner as does TDCJ.”
States have struggled to obtain execution drugs for years after makers enacted more stringent guidelines to keep them away from states that would use them for executions. The idea of a state-run lab making its own death penalty drugs is something Missouri Attorney General Chris Koster raised last year, although many wondered how it could be done. Missouri, like Texas, has had no trouble obtaining pentobarbital.
September 26, 2015 at 11:00 AM | Permalink
Comments
And I would still say that Baze and now Glossip require the condemned to come forward with some actual reason to believe that there is something wrong with the drugs, that the pharmacy did the work wrong. And the condemned needs to do that _before_ a stay is warranted. The fact that the drugs came from a non-traditional manufacturer on its own is not enough.
Posted by: Soronel Haetir | Sep 26, 2015 11:30:03 AM
The "some actual reason" test was met in the view of the Glossip dissenters and expert testimony was present on the point. It was a dissenting view is duly noted, but "some actual reason" was provided. So, we are again going to the merits as well as the level of proof that has to be met before the execution is stopped.
This "kerfuffle" (the author here seems to invite annoyance with his word choice) will continue there given state authorized ending of life is involved & there is a strong movement to stop it and even judges who accept the legitimacy of the death penalty will be wary to not give a hearing to given fear of mistake and misjudgment.
Part of the concern in Glossip on the Alito side is that even granting a drug might be somewhat more risky, the state has the authority to execute, so as long as a basic level of safety is followed, the defendant cannot demand the state meet an impossible test. The article here notes that the defendant raises an argument that an alternative is present. Not that "a non-traditional manufacturer" is a problem.
Nonetheless, at some point, not following basic rules for drugs is a problem. We have certain rules to regulate drugs to protect their safety, including labeling laws etc. Secrecy there has been flagged in part since you need to be informed to determine that the basic level of safety is followed. Alito there rejected Sotomayor's argument that burning at the stake is okay if it was the only thing available. If the state can burn at the stake but just hide the ball, that would be problematic. At some point, not following basic protections meets the "some actual reason" test. The protections being there for a reason.
Posted by: Joe | Sep 26, 2015 2:56:16 PM
Joe, you really have a gift for saying not a whole lot with a lot of words.
By the way, Alito didn't say that burning at the stale was ok.
The bottom line is that Oklahoma can zap this guy with Midazolam. Nothing you've written shows otherwise.
Posted by: federalist | Sep 26, 2015 5:59:42 PM
Why is tying someone down on a gurney and shooting them up with poison more civilized than simply shooting them in the head with bullets? What is wrong with the firing squad? It seems more civilized and manly to me. What do the readers think? Or do they?
Posted by: Liberty1st | Sep 26, 2015 9:58:04 PM
Almost, but not there yet. The Supremacy has repeatedly suggested that Prison Industries use the considerable synthetic chemistry talent within its walls to produce these products according to 19th Century recipes. They are poisons, and not drugs. They are subject to regulatory oversight by the Agriculture Department and not by the Food and Drug Administration. Should the DOJ seek to butt in on behalf of the FDA, enjoin them on lack of subject jurisdiction, and demand that the Agriculture Department review the effectiveness and environmental impact (nil, less than that of the grounds from a cup of coffee) of these poisons.
Posted by: Supremacy Claus | Sep 27, 2015 1:53:27 AM
"Joe, you really have a gift for saying not a whole lot with a lot of words."
I'm aware of your opinion there; thanks for spending the time to repeat it.
"By the way, Alito didn't say that burning at the stale was ok."
Right. As I said -- while explaining myself -- "Alito there rejected Sotomayor's argument that burning at the stake is okay if it was the only thing available." Sotomayor claimed the majority's position [the law of the land on what is "okay"] left open the possibility in certain cases.
"The bottom line is that Oklahoma can zap this guy with Midazolam. Nothing you've written shows otherwise."
Specific issues were discussed. The "bottom line" depends on what we are talking about.
Posted by: Joe | Sep 28, 2015 4:05:48 PM
Justice Sotomayor's dissent suggested the firing squad would be better and others -- including some given their druthers would have no death penalty at all - agree.
I personally think they have a pretty good argument, especially given how lethal injection has various problems, including medical ethical problems. Society, however, has expressed an opinion that the firing squad to them is less humane & is in effect "cruel and unusual." At the very least, they show -- a few states perhaps aside -- no inclination to use it.
Posted by: Joe | Sep 28, 2015 4:10:09 PM
