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Concerns Surround Quality Of Drug To Be Used In Execution Of 'Texas 7' Inmate

Nov. 28, 2018 Huntsville
Jack Morgan | Texas Public Radio
Texas Public Radio
Joseph Garcia is set to die by lethal injection on Dec. 4. But now, new questions are being raised about where the lethal injection drug is coming from and about the quality of that drug.

There are two big letters “D" and "R” on the back of Joseph Garcia’s white prison uniform — they stand for Death Row. Underneath, he’s wearing a burnt orange sweatshirt. The San Antonio native is a fan of the University of Texas Longhorns. Recently, Garcia has been having a tough time sleeping because his death day is coming up.

“I wanna live, you know," he said. "But I'm also tired. I'd been fighting a long time."

Garcia, who was serving a 50-year sentence for the fatal stabbing of Miguel Luna in San Antonio, was convicted of the murder of Irving Police Officer Aubrey Hawkins during the notorious "Texas 7" prison escape. Garcia is scheduled to be put to death at 6 p.m.  He will be Texas' 12th execution of the year, and the fourth member of the Texas 7 put to death.

But now, new questions are being raised about where the lethal injection drug is coming from and about the quality of that drug. And those answers could trigger legal concerns about how Texas executes and about “cruel and unusual punishment.”

When Garcia was asked about what he knows about lethal injection, he said, “I've had a tonsillectomy. I've gone under anesthesia, I don't know if it's the same way. I don't know if that's it. Just give you an overdose and you go to sleep — you know — and that's it. You just don't wake up anymore.”

Based on reports from the most recent Texas executions, the condemned did not receive a peaceful overdose. It appeared, in some cases, the execution was extremely painful.

“Five of the 11 prisoners executed in Texas so far this year have made statements noting that they feel the burning,” said Robert Dunham, executive director of the Death Penalty Information Center.

Dec. 4, 2018 Huntsville
Credit Jack Morgan / Texas Public Radio
Texas Public Radio
Joseph Garcia is set to die by lethal injection on Dec. 4 in Huntsville.

He said Texas has switched from a three-drug protocol to a single drug: pentobarbital, which is a barbiturate that is supposed to knock out and kill the prisoner. But according to some execution witnesses, that’s not happening.

“They feel pain from the pentobarbital. That's not something that we had heard in the past,” he said.

If the pentobarbital was pure and not expired, it would be expected that the execution would be painless. But because of the opposition to the death penalty, those supplies are no longer available to Texas. Where Texas was getting its supply of the drug was an official state secret, but last week Buzzfeed reporter Chris McDaniel broke that story that the drugs were coming from a strip mall in Houston at the Greenpark Compounding Pharmacy and Gifts. The pharmacy’s owner denies making the drug.

“This was a pretty troubled pharmacy," McDaniel said. "It's license had been on probation for a couple of years for accidentally giving the wrong drug to a few children, sending one to the hospital. It had been cited 48 times by the state board of pharmacy. It had been warned by the FDA that its practices could put people at risk.”

McDaniel said the fact that the Texas execution drug is coming from a compounding pharmacy is a big deal.

“Compounded drugs have a really high failure rate." he said. "If you have a poorly compounded drug used in an execution, it could lead to a botched resolved, putting the inmate being put to death through a great deal of pain.”

Dunham said execution witnesses are able to tell that Texas executions have become painful even though the microphone in the death chamber is turned off.

“There are some evidence of pain that can be observed without the audio. In one of the instances of the executions of this year, 2018, there was evidence that the prisoner was writhing on the gurney," he said. "And that was something that the witnesses saw [and] reported. And in others, even though the microphone was turned off, they were able to hear some of the statements that were made.”

Dunham says there needs to be greater transparency in how Texas carries out executions. Last month, he released a report called, “Behind the Curtain: Secrecy and the Death Penalty in the United States."

WATCH | An interview with 'Texas 7' escapee Joseph Garcia


“Secrecy makes it so that the state is unaccountable in the way that it's obtaining drugs ... so the public doesn't have meaningful oversight," he said, "so we can't get to the bottom of problems when they occur in executions.”

But some states, including Texas, argue that sharing with the public information about execution drug manufacturers puts those employees at risk, making it difficult for states to obtain the drugs needed to carry out the orders of the judicial system under the law.

“We're going to shut them down by having continuing demonstrations out front," said Gloria Rubac, an anti-death penalty organizer.

Rubac held a protest Monday in front of the Greenpark Compounding Pharmacy and Gifts, and she promises more protests and other actions will follow.

“We're also going to have international days of phone-ins to the pharmacy," she said. "We're going to have international days of emails to the pharmacy, and we are going to stay on them until they stop making the drugs. So we're just going to keep on and just shut them down.”

Attorneys for Joseph Garcia are now seeking a reprieve from Gov. Greg Abbott based on the concerns about the compounded drug. Also, this could be an 8th Amendment “cruel and unusual punishment” issue that the U.S. Supreme Court will need to address. The lawyers say that Garcia faces an unreasonable risk of a cruel execution.

Update: Garcia was executed on Tuesday, Dec. 4.

David Martin Davies can be reached at dmdavies@tpr.org or on Twitter @DavidMartinDavi

David Martin Davies can be reached at dmdavies@tpr.org and on Twitter at @DavidMartinDavi