Is Texas About To Use Expired Drugs To Execute Death Row Inmates?

Defendants say this practice violates the state’s own laws. The attorney general is pushing onward anyway.

Texas' top criminal appeals court is blocking a civil court from reviewing a lawsuit from inmates scheduled to be executed soon who claim the state is planning to use long-expired drugs to do the deed.

Robert Fratta is scheduled to be executed next week on January 10. Wesley Ruiz and John Balentine are scheduled for execution in February. Ruiz and Balentine filed a lawsuit—which Fratta later joined—in December in the Travis County, Texas, district court seeking an injunction stopping the state from using the pentobarbital it has stored. That's the single drug the state uses for its lethal injections, but the lawsuit claims that some of the drugs expired 20 months ago and others expired more than 43 months ago.

If those drugs are used, the plaintiffs claim the drugs will "act unpredictably, obstruct IV lines during the execution, and cause unnecessary pain." They argue that using these drugs violates the Texas Pharmacy Act; the Texas Controlled Substances Act; the Texas Food, Drug, and Cosmetic Act; and the Texas Penal Code.

The Texas Department of Criminal Justice insists the drugs are not expired and have been thoroughly tested, though as the Death Penalty Information Center notes, Texas law shields much information about its execution drugs from public disclosure, so the public doesn't really have any way to verify the state's claim. Included in the lawsuit was a statement from a pharmacology professor at the University of South Carolina who reviewed the state's records and concluded that the drugs must be expired. She called the methods that the state used to test the potency and safety of the pentobarbital supply "completely unscientific and incorrect."

Presumably, the court could validate whether the drugs are actually expired. But instead, Texas Attorney General Ken Paxton asked the Texas Court of Criminal Appeals to block the civil court "from enjoining, staying, or otherwise interfering with" the three executions "in any way." Paxton argues that criminal courts have exclusive jurisdiction over death penalty cases. On Wednesday, the Texas Court of Criminal Appeals sided with Paxton in a brief unsigned opinion and included no explanation as to why.

One of the appeals court's nine judges, David Newell, dissented, pointing out the strange Catch-22 the courts have put death row inmates into. The courts have determined that defendants can use civil actions to challenge the circumstances of their executions, even though these are criminal cases under a different court's jurisdiction. Ultimately this can mean that "death-row inmates have a civil remedy to pursue claims regarding the method of execution but may not stop the execution to raise them." These defendants can file civil claims showing that Texas is violating its own laws in the way it's handling these execution drugs, but the criminal courts separately can claim jurisdiction and allow for the execution to continue anyway. Newell says he would have allowed this case to be reviewed in order to resolve this "conundrum."

"It is alarming that Texas intends to carry out executions with compounded pentobarbital that expired years ago, in violation of its own state law," said Shawn Nolan, attorney for Ruiz and Balentine, in a prepared statement.

It's equally alarming that the process that got Texas here lacks transparency and the laws that the state is ignoring are intended to keep executions from subjecting inmates to unnecessary (and possibly unconstitutional) pain and suffering.