NPR Investigation Reveals Supplier of Texas Execution Drugs Has Multiple Drug Enforcement Agency Violations; Questions Remain Regarding Drug Acquisition in Other States

A July 10, 2024, National Public Radio (NPR) inves­ti­ga­tion has revealed that Rite Away, a small chain of phar­ma­cies locat­ed around San Antonio and Austin, Texas, com­pound­ed and pro­vid­ed pen­to­bar­bi­tal for the Texas Department of Criminal Justice (TDCJ) between 2019 and late 2023 to car­ry out lethal injec­tion exe­cu­tions. During the same time peri­od, records at the Texas Board of Pharmacy and fed­er­al Drug Enforcement Agency (DEA) indi­cate the phar­ma­cy was cit­ed for mul­ti­ple safe­ty and clean­li­ness vio­la­tions, includ­ing that the phar­ma­cy was sell­ing opi­oids to local drug users. According to the Texas Defender Service, the DEA filed a law­suit in January 2022 against Rite Away, ​“alleg­ing that they had dis­pensed con­trolled sub­stances — includ­ing fen­tanyl — with­out valid pre­scrip­tions, ignored obvi­ous red flags of diver­sion and abuse, and failed to keep accu­rate records.” In an inter­view with NPR, the phar­ma­cies’ own­er, Rohit Chaudhary, con­firmed his phar­ma­cy pro­duced pen­to­bar­bi­tal for TDCJ. During the time Rite Away pro­vid­ed TDCJ with pen­to­bar­bi­tal, the state car­ried out more than 20 executions.

Texas plans to exe­cute pris­on­er Ruben Gutierrez with pen­to­bar­bi­tal on July 16 and has four more exe­cu­tions sched­uled lat­er this year. Texas has not answered whether Rite Away pro­vid­ed the drugs that will be used in the upcoming executions. 

The refusal of phar­ma­ceu­ti­cal man­u­fac­tur­ers to sell drugs used for exe­cu­tions to pris­ons has caused some states to turn to in-state com­pound­ing phar­ma­cies, like Rite Away, for drug sup­plies. Texas offi­cials pre­vi­ous­ly attempt­ed to pur­chase sodi­um thiopen­tal for lethal injec­tion exe­cu­tions from an India-based orga­ni­za­tion with no phar­ma­ceu­ti­cal expe­ri­ence. In 2015, the Food and Drug Administration seized those ship­ments before they reached Texas, as they were mis­la­beled and vio­lat­ed fed­er­al law. Just three years lat­er, a sep­a­rate inves­ti­ga­tion revealed that the state’s drug sup­pli­er had been on pro­ba­tion since 2016, when the Texas State Board of Pharmacy deter­mined it com­pound­ed incor­rect drugs for three chil­dren, send­ing one to the emer­gency room, in addi­tion to forg­ing qual­i­ty con­trol doc­u­ments. According to Estelle Hebron Jones of the Texas Defender Service, this new dis­cov­ery ​“is yet anoth­er exam­ple of how the secre­cy around Texas’ pro­cure­ment of lethal injec­tion drugs expos­es the pub­lic to risks.” She added that ​“when car­ry­ing out exe­cu­tions, Texas must be held account­able to the rel­e­vant laws, includ­ing those gov­ern­ing the drugs that they use to put peo­ple to death. This rev­e­la­tion that the cor­rec­tions depart­ment is buy­ing drugs from a phar­ma­cy that the DOJ alleges is deal­ing opi­oids show how harm­ful the State’s secre­cy law is and why is must be scrapped.”

Other states have recent­ly obtained pen­to­bar­bi­tal in efforts to con­tin­ue or restart lethal injec­tion exe­cu­tions. In May 2024, media report­ed that the Idaho Department of Corrections (IDOC) had pur­chased three dos­es of pen­to­bar­bi­tal for $100,000. This pur­chase price is dou­ble what IDOC spent in October 2023 for the same kind and quan­ti­ty of drugs. In, 2011 and 2012, IDOC paid about $25,000 for the pen­to­bar­bi­tal used in the state’s last two lethal injec­tion exe­cu­tions. In February 2024, IDOC unsuc­cess­ful­ly attempt­ed to exe­cute Thomas Creech because of dif­fi­cul­ties estab­lish­ing an IV line. For Mr. Creech’s sched­uled exe­cu­tion, IDOC offi­cials uti­lized two e dos­es of pen­to­bar­bi­tal, leav­ing just one dose remain­ing for future use. IDOC’s Director Josh Tewalt acknowl­edged after paus­ing Mr. Creech’s exe­cu­tion that offi­cials would need more pen­to­bar­bi­tal to car­ry out future lethal injec­tion exe­cu­tions, and said he was con­fi­dent they could acquire those drugs when necessary.

In June 2024, Indiana Governor Eric Holcomb and Attorney General Todd Rokita announced that the Indiana Department of Correction acquired pen­to­bar­bi­tal to car­ry out a lethal injec­tion exe­cu­tion for the first time in 15 years. Indiana’s last exe­cu­tion, in 2009, was car­ried out with a three-drug pro­to­col begin­ning with sodi­um thiopen­tal; this would be the state’s first attempt at an exe­cu­tion with a one-drug pro­to­col. Indiana offi­cials have refused to dis­close where they acquired pen­to­bar­bi­tal, cit­ing a secre­cy law that pro­tects those involved in procur­ing and pro­duc­ing drugs for exe­cu­tions from pub­lic dis­clo­sure. Gov. Holcomb told reporters that the state has attempt­ed for sev­en years to acquire the drugs nec­es­sary for lethal injec­tion exe­cu­tions but could not dis­close additional information.