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Strange Days for Texas’ Death Penalty

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Sebadoh's "Harmacy"

For years, we’ve been hearing that Texas is running out of the drugs it uses to carry out the death penalty.

In 2011, the state’s supply of the three-drug combination it had long been using expired. Texas switched to using a single drug called Nembutal, then used the last of that Nembutal in an execution late last month.

These shortages aren’t like the dwindling national helium reserve, or NASA’s plutonium-238 shortage. There’s plenty of Nembutal out there, but the drug’s Danish manufacturers refuse to sell them to us, or any state that’ll use them to put people to death.

It’s a strange situation for the state, where there’s still strong support for the death penalty—and most people even think it’s being fairly applied. Nowhere but Ikea have Texans been so susceptible to Scandinavian norms.

Michael Yowell, convicted in 1999 of killing his parents for drug money, argued in a last-ditch lawsuit this month that using an unproven, unregulated replacement drug in his execution could constitute cruel and unusual punishment. The suit, which also includes two other death row inmates, notes the “unprecedented nature of recent events” as Texas scrounges for the drugs it needs to deal out its toughest justice. According to the complaint, the Texas Department of Criminal Justice’s “secretive approach makes it impossible for Plaintiffs to discover the method by which they will be executed.”

Like so much with the death penalty, it’s an eerie thought: a condemned man arguing his right to know how the state plans for him to die, and whether the drug that kills him will be safe. Early this week, a federal judge rejected Yowell’s appeal, essentially saying that Yowell wouldn’t be around to worry about any long-term health risks the drugs may carry. He was executed Wednesday night.

But in the course of that legal wrangling, Texas’ new source for death row pharmaceuticals was revealed to be the Woodlands Compounding Pharmacy, a 5-year-old custom drug maker tucked away in an industrial office complex in Houston’s dreamiest suburb.

Not only that, the pharmacist was having second thoughts. “I must demand that TDCJ immediately return the vials of compounded pentobarbital in exchange for a refund,” Jasper Lovoi III told TDCJ in a letter dated October 4. Though he’d been assured his involvement would be kept “on the ‘down low,’” Lovoi writes, “I find myself in the middle of a firestorm that I was not advised of and did not bargain for.”

Protesters had gathered outside Lovoi’s pharmacy before Yowell’s execution. Lovoi’s Google reviews are in the tank. Critics decried the conflict between supplying the state’s lethal drugs after taking the pharmacist’s oath to consider “the welfare of humanity and relief of human suffering.” And Texans for Public Justice noted Lovoi’s side business selling anti-aging creams, dryly suggesting his custom pentobarbital was the ultimate cure for old age.

All that for a $2,800 order.

TDCJ refused to return the drugs to Lovoi. The Chicago-based drug maker Hospira asked for its drugs back too, but again TDCJ refused.

So it’s not just European drug makers who’ve grown squeamish about their role in putting convicts to death. As Dan Solomon put it at Texas Monthly this week, “the invisible hand of the market is increasingly uncomfortable participating in executions.”

It’s not just market forces at work, though—it’s the concerted efforts of anti-death penalty activists who’ve spent years lobbying pharmaceutical companies in the hopes of creating a storm just like this. Without winning over the public sentiment or even scoring a major political debate over the capital punishment, they’ve put the death penalty in Texas on shaky ground.

It’s a fascinating trend playing out all over the country. Just this week, Missouri agreed to return some of its lethal injection drugs to a frantic supplier who said it only filled their order by mistake.

One elegant solution to this problem, from the state’s perspective at least, could be to copy recent laws in Georgia and South Dakota protecting death row drug makers’ identities. Georgia’s law is facing a court challenge right now.

Earlier this year, NPR quoted Georgia’s assistant attorney general Sabrina Graham, who defended the law in court by imagining  just the situation Lovoi and Texas find themselves in today:

“Once that compounding pharmacy’s identity is revealed, how will the Department of Corrections ever get another compounding pharmacy to sell to us?”

Patrick Michels is a reporter for the Texas Observer and a former legislative intern. He has been a staff writer and web editor at the Dallas Observer, and a former editor of the Texas Independent. He has a bachelor's in journalism from Northwestern University, a master's in photojournalism from the University of Texas at Austin, and is a competitive eating enthusiast.