HOUSTON (CN) — Texas doles out the ultimate punishment far more than any state and uses only one drug – pentobarbital – for executions. Three Texas inmates set to die early this year are fighting for reprieves, claiming the state’s supply of the drug expired years ago.
John Balentine, 53, was convicted of capital murder by a jury in Amarillo in 1999 and sentenced to death after confessing to police he had snuck into his ex-girlfriend’s home in January 1998 and killed her brother and two of his friends, shooting them each once in the head with a pistol.
First scheduled to die in 2009, Balentine has received at least three court-ordered stays of execution over the years, but he makes clear in a lawsuit – filed with fellow death row inmate Wesley Ruiz in Travis County District Court against the Texas Department of Criminal Justice and two of its top officials – he is not seeking another stay.
Ruiz, 43, received a death sentence in 2008 for fatally shooting Mark Nix, a Dallas police corporal, in March 2007. Police had boxed in Ruiz’s vehicle after he led them on a high-speed chase. With Nix breaking out his car’s windows with his baton, Ruiz fired at Nix. The bullet struck the officer’s badge and a fragment severed an artery in his neck.
“Petitioners are not challenging their convictions or sentences of death in this action,” the men say in their lawsuit. “Nor are petitioners arguing that the use of pentobarbital violates their state or federal constitutional rights to be free from cruel and unusual punishment."
They claim TDCJ is planning to execute them with compounded pentobarbital that expired years ago, obtained from an "unknown pharmacy and pharmacists," who they also name as defendants, in violation of the Texas Pharmacy Act, Texas Controlled Substances Act, Texas Food, Drug, and Cosmetic Act, and Texas Penal Code. TDCJ keeps the pharmacy's name confidential.
“Expired medications can cause nausea, vomiting, acute renal failure, and other severe side effects,” the complaint states.
Shortly after the inmates filed suit in December, Texas Attorney General Ken Paxton asked the Texas Court of Criminal Appeals to issue a writ of prohibition, barring the trial judge from issuing any execution-stay orders for Balentine, Ruiz, or Robert Fratta.
The appeals court obliged Paxton on Wednesday with a brief 7-2 order.
In dissent, Judge David Newell complained the court has created a “Catch-22 in which death-row inmates have a civil remedy to pursue claims regarding the method of execution but may not stop the execution to raise them.”
Fratta, 65, intervened in the case and is in most urgent need of relief. His execution is scheduled for Jan. 10, while Ruiz’s and Balentine’s are set for Feb. 1 and Feb. 8, respectively.
Fratta is on death row following his May 2009 capital murder conviction, in a retrial, for hiring hitmen to kill his estranged wife. One of the men fatally shot Fratta’s wife in her home’s garage in November 1994. At the time, Fratta was employed as a police officer by Missouri City, a Houston suburb.
Citing TDCJ lab reports they obtained with open-records requests, Balentine’s and Ruiz’s attorneys say in their lawsuit the agency has stockpiles of compounded pentobarbital in 50- and-100-milliliter vials.
Though the maximum beyond use date is 45 days if the vials are kept frozen, the plaintiffs claim, the TDCJ’s 50-ml vials are at least 636 days old and its 100-ml vials are at least 1,325 days old.
According to the inmates’ counsel, not only is the pentobarbital expired but TDCJ has not tested its pH as required of compounded drugs in guidelines established by the United States Pharmacopeia, nor has the agency visually inspected its vials of the drug for particulates, which raises concerns it could obstruct the inmates’ IV lines and cause unnecessary pain.
“Expired drugs fall out of solution. When that happens the drugs themselves get grainy. That would obstruct the IV lines,” their attorneys – Shawn Nolan, Peter Walker and Alex Kursman of the Federal Community Defender Office for the Eastern District of Pennsylvania and Jennae Swiergula of the Texas Defender Service – said in an email.
Texas executes inmates with 5-gram injections of pentobarbital, a barbiturate prescribed to treat seizures and insomnia, and successfully used the protocol on five men last year.
The inmates’ legal team said they do not believe that cuts against their claims that Texas’ expired stock is potentially dangerous. “First we don’t know if they experienced pain. And second, the drugs are even more expired today than they were then,” they said.
According to the complaint, the TDCJ does not consider its pentobarbital to be expired because it periodically sends vials back to its pharmacy source and has it run potency tests on them, thereby extending its beyond use date, a process the plaintiffs’ counsel decries as “unscientific and invalid.”
The lawsuit continues: “On November 29, 2022, TDCJ’s general counsel’s office informed petitioners that respondents were claiming to have yet again extended the BUD of the pentobarbital vials, and were now claiming that all 50ml vials in TDCJ’s possession expire on September 27, 2023, and all 100ml vials expire on November 1, 2023.”
Reached for comment on the lawsuit Thursday, TDCJ communications director Amanda Hernandez said, "All lethal injection drugs are within their use dates and have been appropriately tested."
Texas has executed 578 prisoners since the U.S. Supreme Court lifted a four-year ban on the death penalty in 1976. The next leading state is Oklahoma, which has put to death 119 inmates, according to the Death Penalty Information Center.
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