By Carey Gillam
(Reuters) - Texas officials on Monday refused to return lethal drugs they plan to use for an execution this week, despite a demand from the provider which wanted to remain anonymous but has been thrust into a controversy over capital punishment.
"The drugs were purchased legally by the agency," the Texas Department of Criminal Justice (TDCJ) said on Monday. "TDCJ has no intention of returning the pentobarbital."
The statement from Texas, which executes more inmates than any other state, comes at a time when many states are turning to compounding pharmacies to secure lethal injection supplies after major pharmaceutical manufacturers have said they do not want their drugs used for executions.
The drugs mixed by compounding pharmacies are not approved by the U.S. Food and Drug Administration, and their use in providing execution drugs has come under fire from capital punishment opponents and others, who say the drugs these pharmacies provide may not be pure and potent and may cause needless suffering to the codemned.
Texas announced on October 2 that it had purchased pentobarbital from The Woodlands Compounding Pharmacy in The Woodlands, Texas, near Houston. Two days later, on October 4, Woodlands demanded the drugs be returned in a letter to state corrections officials and to the state attorney general's office. Company owner Jasper Lovoi said he had been promised secrecy by the state.
"It was my belief that this information would be kept on the 'down low' and that it was unlikely that it would be discovered that my pharmacy provided these drugs," Lovoi said in the letter. He demanded that the state "immediately return the vials of compounded pentobarbital."
A copy of Lovoi's letter was submitted as part of a lawsuit filed by three inmates on Texas' death row last week.
The inmates sued in part because of the state's efforts to rely on a compounding pharmacy for execution drugs. They said use of the drugs could be cruel and unusual punishment because they are produced by a compounding pharmacy and are not approved by the FDA, according to court documents.
Among the inmates suing the state is Michael Yowell, scheduled to be executed on Wednesday. U.S. District Judge Lynn on Saturday ordered the execution of Yowell to proceed. Yowell's attorneys said Monday they are appealing that decision to the Fifth Circuit Court of Appeals in New Orleans.
"The letter (from the compounding pharmacy) is further evidence of the TDCJ's pattern of misconduct with respect to their efforts to obtain the drugs and how they intend to proceed with executions," said Maurie Levin, one of the attorneys representing the three inmates.
The Texas case is 4:13-cv-02901 in the U.S. District Court for the Southern District of Texas Houston Division.
(Reporting by Carey Gillam; Editing by Greg McCune and Richard Chang)