Lawyers claim Texas is supplying Virginia with execution drugs. Is that legal?

Texas prison officials are providing their Virginia counterparts with the lethal drug pentobarbital, which corrections agencies across the country are struggling to obtain.

Sue Ogrocki/AP
Two of Richard Glossip's attorneys, Don Knight (r.) and attorney Kathleen Lord (l.) speak with the media in McAlester Okla., after his execution was stayed on Sept. 16. Mr. Glossip's attorneys allege in a court filing that Texas is 'compounding or producing pentobarbital within its department for use in executions' without a license to manufacture pharmaceuticals.

In an effort to ensure a scheduled execution for next week actually happens, Texas prison officials are providing their Virginia counterparts with the lethal drug pentobarbital, which has become increasingly difficult for corrections agencies across the country to obtain.

In 2013, Virginia performed the same favor for Texas, according to Texas prisons spokesman Jason Clark.

The disclosure was found in court documents for a prominent death penalty case in Oklahoma.

On Thursday in a federal court filing, Oklahoma inmate Richard Glossip’s lawyers said Texas is "compounding or producing pentobarbital within its department for use in executions."

Mr. Clark rejected that notion, saying the state does not have the necessary license to manufacture its own pharmaceuticals.

As the Christian Science Monitor reported, in recent years, the supply of lethal-injection drugs has run dry:

Compounding pharmacies, which combine, mix, or alter drugs to meet the needs of a patient with a specific prescription, only recently became involved in the execution-drug business.

For decades, pharmaceutical manufacturers sold the drugs used in lethal-injection cocktails directly to state officials. But in 2011, under pressure from anti-death penalty activists in the United States and abroad, the companies stopped selling their goods to correctional systems. That same year, the European Union instituted an export ban on lethal-injection drugs. It was then that the states turned to compounding pharmacies for the special orders.

Mr. Glossip was convicted twice for a 1997 murder and was originally scheduled to be executed in January. But his lawyer convinced the US Supreme Court to consider whether Oklahoma's use of midazolam, an experimental drug added to execution cocktails in several states after pentobarbital became more difficult to obtain, violates the 8th Amendment, which protects citizens from cruel and unusual punishment. They argued the drug can cause agonizing pain and suffering, but the Supreme Court decided 5-4 against Glossip. His lethal-injection was rescheduled for September but the Oklahoma Court of Criminal Appeals granted him a last-minute stay of execution on September 16.

In 2014, The Associated Press reported on the condition of a death row inmate after being injected with midazolam and a painkiller during an execution:

Ohio's lethal injection policy, like those in Missouri and Texas, calls for a single dose of pentobarbital. The state was unable to obtain pentobarbital for the past two executions, instead using a backup, two-drug combination of the sedative midazolam and the painkiller hydromorphone.

That combination was used to kill Dennis McGuire on Jan. 16 in an execution that raised new concerns. McGuire took 26 minutes to die, snorting, gasping and repeatedly opening and shutting his mouth as the drugs took effect.

As these lethal drugs become harder to acquire, states are considering controversial measures to ensure executions carry on, including firing squads, electric chairs, and hanging.

This report contains material from the Associated Press.

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