Concerns are mounting that Robert Fratta's upcoming execution in Texas may be botched because the state plans to use drugs that experts and advocates say are long-expired.
Fratta, 65, a former police officer, is set to receive a lethal injection at the state penitentiary in Huntsville at 6 p.m. CT on Tuesday for hiring two people to kill his estranged wife.
He joined a lawsuit initially filed by two other inmates whose executions are scheduled for February—Wesley Ruiz and John Lezell Balentine—to stop the state's prison system from using the allegedly unsafe drugs.
A hearing on the lawsuit will take place at 10 a.m. CT on Tuesday, just hours before Fratta's scheduled execution.
The inmates' petition argues that some of the state's vials of pentobarbital expired almost two years ago, while others expired almost four years ago. If used, the drugs will "act unpredictably, obstruct IV lines during the execution, and cause unnecessary pain," the petition states.
Texas has turned to compounding pharmacies to obtain pentobarbital for executions after traditional drugmakers refused to sell their products to prison agencies in the United States.
According to The Texas Tribune, the state currently has seven doses of lethal injection drugs in stock, with two doses reportedly expiring in September and the remaining five in November. But the newspaper noted that Texas has only managed to keep that supply on hand by repeatedly extending the expiration dates of the doses by testing potency levels as the expiration date nears.
In a supporting declaration to the inmates' petition, Dr. Michaela Almgren, a pharmacology professor at the University of South Carolina School of Pharmacy, said Texas' pentobarbital is "far beyond" the specified Beyond Use Date.
She said that Texas "improperly extended" the Beyond Use Date using an approach that is "completely unscientific and incorrect, and therefore the result is invalid." The state has extended the expiration date on multiple vials of pentobarbital based on the results of a potency test performed on a single vial, according to the petition.
Robert Hurst, a spokesman for the Texas Department of Criminal Justice, told Newsweek that "all lethal injection drugs are within their use dates and have been appropriately tested."
However, attorneys and advocates have raised concerns that Fratta could join a long list of inmates who have suffered botched lethal injections.
It is "alarming that Texas intends to carry out executions with compounded pentobarbital that expired years ago, in violation of its own state law," Shawn Nolan, an attorney for Ruiz and Balentine, said in a statement provided to Newsweek.
"The State's unscientific claims about its drugs' use-by date cannot change the fact that the drugs expired years ago. We must have a hearing to ensure that Texas does not violate the law and place prisoners at serious risk of pain and suffering in the execution process."
Newsweek reached out to an attorney for Fratta for comment.
"In its determination to persist with lethal injection executions, despite unanimous opposition from the pharmaceutical industry and medical profession, Texas has resorted to killing prisoners with expired drugs to keep its dwindling stocks in use," said Blaire Andres of the nonprofit Reprieve U.S.
Compounded pentobarbital "has a shelf life of just 45 days when frozen solid, yet the deadly dose of pentobarbital being prepared for Robert Fratta is several years old," Andres told Newsweek.
"The unethical and unscientific practice of re-labeling and re-using expired drugs shows just how desperate Texas has become. This is human experimentation in the guise of 'justice' and the potential consequences are horrific."
The allegations in the lawsuit are "particularly concerning" given Texas' history of "obtaining execution drugs from questionable compounding pharmacies and then manipulating and misrepresenting expiration dates," said Robert Dunham, the executive director of the Death Penalty Information Center (DPIC).
Dunham told Newsweek that "the use of improperly compounded, tainted, or expired drugs greatly increase the chances that the condemned prisoner will be subjected to an unacceptably torturous execution."
He noted that drug-related issues were reported with at least six executions carried out in Texas in 2018 and in another execution in another state with drugs that are believed to have been supplied by Texas.
Meanwhile, the DPIC's latest year-end report said 2022 could be called "the year of the botched execution" because seven of 20 execution attempts were "visibly problematic."
It noted that states "persisted in veiling the execution process in secrecy," but what reporters were able to witness, as well as what autopsies or failed executions revealed, was "shocking."
"Departments of Corrections across the country have repeatedly shown that they cannot be trusted to tell the truth about their conduct in executions, and Texas's use of secrecy to hide critical facts relating to these executions is another case in point," Dunham said.
"This is yet another reason why transparency and public accountability are so important when it comes to the death penalty."
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Khaleda Rahman is Newsweek's Senior News Reporter based in London, UK. Her focus is reporting on abortion rights, race, education, ... Read more
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