Texas picks new drug for execution cocktail

Deborah W. Denno in The Austin American-Statesman, March 16, 2011

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Sedative is often used to euthanize animals; switch likely to bring court challenge.

By Mike Ward
AMERICAN-STATESMAN STAFF

Published: 8:33 p.m. Wednesday, March 16, 2011

Texas will change the three-drug cocktail it uses to execute condemned criminals, switching from the difficult-to-get sodium thiopental to pentobarbital, officials said Wednesday.

Michelle Lyons, spokeswoman for the Texas Department of Criminal Justice, said the new drug will be used for the first time in the scheduled April 5 execution of convicted murderer Cleve Foster.

The change marks the first time since December 1982 that Texas has changed its three-drug formula used in executions.

In the past year, the only U.S. supplier of sodium thiopental discontinued production, and Texas and other states have been unable to find another supplier to continue executions. Georgia's supply was seized by federal investigators Tuesday amid questions about how the state obtained it.

Texas' on-hand supply expires at the end of this month.

Sodium thiopental is a short-acting barbiturate, one of three drugs used in executions. Pancuronium bromide and potassium chloride are the other two drugs, used to paralyze muscles and stop the heart, respectively.

In recent months, Oklahoma and Ohio switched to pentobarbital — a surgical sedative and barbiturate commonly used for euthanizing animals — because of the supply problem. Oklahoma has carried out two executions with the new drug in the combo, and Ohio has carried out one using only pentobarbital.

Lyons said Texas has recently purchased enough pentobarbital for five executions. She said 5 grams of pentobarbital will be used instead of 3 grams of sodium thiopental.

A legal challenge to the change is expected.

In a statement, Maurie Levin, Foster's attorney, criticized prison system officials for making the last-minute switch when they have known for months that their supply of sodium thiopental was about to expire.

"The timing of the decision and disclosure raises serious concerns about the haste with which they are seeking to implement this new process, and a lack of transparency by state officials," she said. "To permit less than three weeks for these matters to be vetted undermines any faith we can have in TDCJ's concern for deliberate process, accountability, or the constitutionality of the new procedures."

Levin said that the decision on the change was not made by medical professionals. Lyons said Rick Thaler, head of the agency's prisons division, authorized the drug switch.

Even so, Lyons said, courts have allowed other states to switch to pentobarbital.

"Oklahoma has successfully used the drug in its execution process, and our protocol would be the same as the one used by Oklahoma," Lyons said. Texas adopted its initial three-drug cocktail in 1982 from one proposed in Oklahoma.

Deborah Denno , a Fordham Law School professor who is one of the nation's leading experts on death penalty issues, questioned the drug switch.

"In a continuing desperate measure to execute, Texas has followed in the footsteps of Oklahoma by switching drugs not in an effort to make executions more humane, but simply to make the execution process more feasible, irrespective of the unknown consequences," she said. "This lemming effect has created a decades-long pattern of lethal injection botches in which (state corrections departments) try to remain one step ahead of lawsuits."

Texas has five executions scheduled between April and July. Last year, 17 criminals were executed, the most of any state. In the past 25 years, Texas has carried out more than 450 executions.

Texas' decision to switch to pentobarbital comes amid some cautions. Medical professionals have warned for months that the drug has rarely been used on humans in recent years, a potential problem in legal challenges.

In addition, though pentobarbital is now widely available, Lundbeck Inc., the sole U.S. manufacturer of the drug, recently cautioned that the firm does not approve of its use in executions — a statement similar to one issued by the maker of sodium thiopental before it cut off the supply last year.