Texas is running low on its limited supply of pentobarbital, the drug used in executions, and there might not be more to be had. The drug is hard to come by—the manufacturer, Lundbeck, is a Danish company that has worked to prevent it from ending up in the hands of states that will use it to execute prisoners—and local options for sourcing the drug, like “compound pharmacies,” which are able to manufacture small doses, face increased scrutiny. After an AP report uncovered that the Woodlands Compounding Pharmacy provided pentobarbital to the state, the pharmacy issued a letter to the state asking for the drug back, as the owner and pharmacist was apparently under the impression that no one would find out that he’d manufactured the drug for executions:
Based on the phone calls I had with Erica Minor of TDCJ regarding its request for these drugs, including statements she made to me, it was my belief that this information would be kept on the ‘down low’ and that it was unlikely that it would be discovered that my pharmacy provided these drugs. Based on Ms. Minor’s requests, I took steps to ensure it would be private. However, the State of Texas misrepresented this fact because my name and the name of my pharmacy are posted all over the internet. Now that this information has been made public, I find myself in the middle of a firestorm that I was not advised of and did not bargain for. Had I known that this information would be made public, which the State implied it would not, I never would have agreed to provide the drugs to TDCJ.
The Woodlands Compounding Pharmacy’s concerns about the use of their drug seems to begin and end with the amount of protest they have received. Regardless, it seems likely that, unless there’s a compounding pharmacy out there run by death penalty true-believers who are happy to weather any potential PR firestorm, it’s going to be hard to find another one that’s willing to take on the task of mixing the lethal drug now that there seems to be increased examination around this issue.
All of this can be confusing to talk about. For one, the drug pentobarbital is occasionally confused with phenobarbital, which is a different compound. (Phenobarbital has never been used in an execution.) But given the newness of pentobarbital as an execution drug, it’s hard to be surprised that people might get mixed up: pentobarbital only entered the state’s execution process last year, after the components of a three-drug cocktail, utilized because it made the execution process relatively painless, became difficult to come by following restrictions from European drug companies.
Texas isn’t the only other state struggling with a shortage. Missouri, which also recently ran out of lethal injection drugs, is testing out the anesthetic Propofol, which became famous after its role in the 2009 death of Michael Jackson. But the European manufacturers of that drug are likely to make it as difficult to come by as pentobarbital.
In other words, the invisible hand of the market is increasingly uncomfortable participating in executions. Whether the reticence comes from European manufacturers who oppose the use of their drugs for cultural reasons, or from American compounding pharmacies who fear the next FOIA request that’ll out them as the supplier, the day could come when there just aren’t any more lethal injections to be had.
In Texas, what happens next is complicated: State law requires all executions to be carried out by lethal injection, and unless there’s yet another special legislative session called to change the law, TDCJ will either have to continue to scramble for vials of deadly drugs or suspend executions until the legislature meets again in 2015. Texas has never seemed interested in delaying executions, so it’s hard to know what’ll happen.
It’s also hard to know what might replace lethal injections, if and when the supply of drugs fully dries up. Every state in which executions remain legal use lethal injection as the primary method of killing prisoners, but others have backup options available to them: electrocution, gas chambers, hanging, and firing squads remain legal in other parts of the country. Texas could well turn to one of these methods if lethal injections are ended by market forces. Because one thing seems pretty clear—with the expected execution of the state’s 506th prisoner, Michael Yowell, due later today, Texas isn’t likely to stop.