Does an Expired Execution Drug Make Death Painful?

Texas prison officials have already scheduled nine executions for 2023 – one of which took place Tuesday. That's more than in all of last year. The first three to be executed – Robert Fratta (killed Tuesday evening in Huntsville), Wesley Ruiz, and John Balentine – asked that the state investigate whether the drugs Texas uses in its lethal injections are expired and could cause pain and suffering in the execution process. So far, no court has granted the request.

Such appeals over using an expired drug to kill prisoners have been made several times before – for example, in 2014, Willie Trottie's attorneys argued that the use of expired pentobarbital, the drug the state has used since 2012 to kill death row inmates, causes a burning sensation before death, constituting cruel and unusual punishment in violation of the Eighth Amendment. The courts rejected Trottie's appeal and he was executed.

This is not the same argument, however, that Shawn Nolan, the attorney for Ruiz and Balentine, is making. Instead, he claims prison officials are violating the Texas Pharmacy Act; the Texas Controlled Sub­stances Act; the Texas Food, Drug, and Cos­metics Act; and the Texas Penal Code in using an expired drug. He has asked the 345th District Court in Travis County – a court handling civil, not criminal, matters – to order TDCJ to refrain from using expired pentobarbital in the execution of his clients. On Jan. 5, at the request of Attorney General Ken Paxton, the Texas Court of Criminal Appeals ordered the district court not to intervene in the matter.

The Texas Department of Criminal Jus­tice claims that its supply of pentobarbital is safe. Dr. Michaela Almgren, a pharmacology professor at the University of South Caro­lina, disagrees. "Based the records I reviewed ... all of the pentobarbital in TDCJ's possession is expired," Almgren wrote in the petition submitted by Nolan in December. Almgren added that the method TDCJ uses to assess the drugs' potency, apparently to justify its use after expiration, is "completely unscientific and incorrect, and therefore the result is invalid."

Nolan says in his petition that TDCJ purchases pentobarbital in 50- and 100-milliliter vials. "The 50ml vials of pentobarbital in TDCJ's possession expired over twenty months ago and the 100ml vials of pentobarbital expired over forty­-three months ago," he writes. "Given the age of the drugs ... the pentobarbital [they] intend to use to execute Mr. Ruiz and Mr. Balentine will act unpredictably, obstruct IV lines during the execution, and cause unnecessary pain."

The Jan. 10 execution of Robert Fratta, a former policeman convicted of hiring two men to kill his wife in 1994, was delayed about an hour as a flurry of final-day appeals cleared the U.S. Supreme Court and Texas' highest courts. His attorney, John Freiman, submitted a 197-page petition in late Decem­ber with a number of new claims, including that prosecutors used hypnosis to alter the memory of the only eyewitness to the murder but never disclosed it to Fratta's defense attorneys. The TCCA rejected Freiman's petition on Jan. 4 without bothering to review its contents. A video of Fratta's conversation with Death Penalty Action Executive Director Abraham Bonowitz 36 hours before killing time is available here.