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With just weeks until Indiana’s third scheduled execution in less than a year, debate continues around the state’s supply of pentobarbital — and whether the execution drug can be safely used to kill death row inmate Roy Lee Ward.
Ward is scheduled to die by lethal injection before sunrise on Oct. 10 at the Indiana State Prison in Michigan City, where he’s currently incarcerated. The date was finalized by the Indiana Supreme Court in an order issued last week.
Even so, Gov. Mike Braun said on Friday that Indiana’s Department of Correction does not yet have the necessary execution drugs in hand.
When asked about the state’s drug supply, the governor reiterated that Indiana is taking steps to ensure doses do not expire before use.
Braun said the state would not purchase more pentobarbital until necessary. The governor previously disclosed that state officials spent $1.175 million on lethal injection doses over the past year — $600,000 of which was spent by former Gov. Eric Holcomb’s administration on drugs that expired before use. The cost has been between $275,000 and $300,000 per dose.
“Once the Supreme Court weighs in, and the parole board, and we’ve got a date — Oct. 10, that’s not too far away — it’ll be no different from what you saw on the last one,” Braun said, referring to death row inmate Benjamin Ritchie’s execution in May.
“We’re just managing the resource of what is a very difficult drug to get, and making sure that they don’t expire on the shelves,” he continued. “The state will have (the drug) at the time when we are sure that there’s nothing that can be in the way of (the execution) being completed. And that’s getting close.”
Although the high court rejected Ward’s request to pursue a new post-conviction appeal, justices suggested he could file a separate challenge to Indiana’s execution protocol itself.
Defense attorney Joanna Green told the Indiana Capital Chronicle that Ward’s team does “plan to continue to litigate the drug protocol in federal court” and will likely file a Section 1983 lawsuit — a federal civil rights claim — in addition to a second or successive federal habeas petition.
Ward, 44, was sentenced to death after he pleaded guilty to the 2001 rape and murder of 15-year-old Stacy Payne in Spencer County. His case has played out through state and federal courts for more than two decades. The U.S. Supreme Court declined to hear the case in 2017.
New expert affidavit
Included in new court filings submitted by Ward’s attorneys was an affidavit from Michaela Almgren, a pharmacy professor at the University of South Carolina and compounding drug expert who flagged concerns about the quality, safety and source of the injectable pentobarbital Indiana plans to use.
The same drug was presumably used in the December execution of Joseph Corcoran, as well as Ritchie’s execution in May.
In her sworn statement, Almgren said Indiana officials are “most likely” purchasing compounded, injectable pentobarbital to carry out executions “because manufactured doses would not most likely have expired before they could have been used.”
At least ten states have either used or intend to use compounding pharmacies to obtain their drugs for lethal injection, according to the Death Penalty Information Center.
She described compounding as the process used by pharmacists or small pharmacy facilities to mix raw drug ingredients into a usable solution when manufactured versions are unavailable.
Pentobarbital for lethal injection is made by dissolving pentobarbital sodium powder in a mix of chemicals to keep it stable in liquid form. The process typically involves adjusting the drug’s pH with sodium hydroxide and hydrochloric acid, then adding alcohol and propylene glycol to keep the solution from breaking down, Almgren explained.
But if the balance isn’t exact, the drug can form particles or become too acidic or alkaline, and injection can cause extreme burning and stinging pain or tissue injury.
“If a precipitate or suspension forms, the pentobarbital cannot be safely injected because it would cause extreme pain and suffering to the prisoner … leading to a slow and excruciatingly painful death,” Almgren said.
Unlike medications approved by the U.S. Food and Drug Administration, compounded drugs are not tested or verified for safety, quality, or effectiveness before use.
Small-scale “503A” compounding pharmacies — which Almgren said are the most likely source of Indiana’s supply — operate under looser standards than large manufacturers and are exempt from routine FDA inspections.
She emphasized in her affidavit that compounded pentobarbital is inherently less stable than manufactured doses, often expiring in days or weeks, and will degrade if not transported and stored correctly.
Almgren noted that manufactured versions last two to three years.
The governor’s office acknowledged that two doses previously acquired by Indiana officials expired before they could be used, forcing the state to purchase more.
Because Indiana law shields the identity of suppliers, it’s impossible to know whether the lethal injection drug was prepared by a qualified pharmacist or even in a sterile facility, Almgren warned.
Under Indiana’s statute, “the issuance or compounding of a lethal substance does not constitute the practice of pharmacy” — meaning lethal injection drugs are outside the jurisdiction of the state’s pharmacy board, the health department, or any state licensing agency.
“This indicates that the medications used for lethal injection are prepared without oversight, and their quality cannot be verified,” Almgren said in her affidavit. “As a result, an incorrect (active ingredient) could be used, or a drug could be improperly prepared, potentially causing unnecessary pain and suffering.”
She added that the medication used in Indiana’s lethal injection procedure may be prepared by an individual who is neither qualified nor appropriately trained, and who may not even be a licensed pharmacist.
“If an unqualified person compounds drugs, the risk of medication errors and contamination is significantly higher. They may lack the technical knowledge to ensure correct drug, dosage, sterile technique, and proper handling, leading to variations in potency, degradation, or microbial contamination. Such mistakes can result in ineffective or harmful medications.”
Her affidavit also pointed to accounts from Ritchie’s execution, in which witnesses reported seeing the inmate lurch violently against his restraints after the injection began. No members of the media were permitted to witness, however.
Almgren said Ritchie’s “unexpected reaction raises questions about the quality and effectiveness of the pentobarbital used, as it did not produce the expected effect.” Based on pharmacology, she wrote, such a reaction suggests the drug could have been degraded or improperly prepared.
According to the affidavit, a large intravenous dose of pentobarbital should cause the person to quickly lose consciousness and slip into a deep coma, “ensuring the person simply falls asleep and remains unconscious without experiencing distress or abnormal reactions.”
Remaining avenues
Indiana justices said Ward may still have “other, viable avenues in state or federal court.” He can also seek clemency from the governor.
Ward’s lawyers argued in their August filings that the state’s secrecy surrounding its lethal injection protocol — in addition to concerns with Ritchie’s execution — violated his constitutional rights.
The Indiana Supreme Court denied his bid to raise those claims through a successive post-conviction case, ruling they go to the method of execution and not the underlying conviction or sentence. Justices noted Ward could pursue those issues through other legal avenues, however.
His defense team has since filed a petition to rehear the case and asked the state’s high court to delay the execution date until the DOC has responded to outstanding public records requests.
Ward’s legal counsel filed multiple requests with DOC seeking information about what drugs the state intends to use in Ward’s execution, including “whether they are expired, how they are transported and stored, or their potency and sterility.”
Green said on Tuesday those requests have yet to be filled and that Ward has received “just silence” from DOC. They maintained in recent court filings that DOC’s refusal to provide public records on the drugs it intends to use “obstructs (Ward’s) ability to challenge the constitutionality of his execution.”
While details about the state’s execution drugs largely remain shielded, court proceedings earlier this year revealed more about Indiana’s execution procedures than had previously been public. In filings and a declaration from Indiana State Prison Warden Ron Neal, state officials outlined a highly choreographed DOC process overseen by specially trained staff, including an injection team, IV team, extraction team and death watch unit.
Training occurs every two to three months under normal circumstances but accelerates once an execution date is set.
Neal said that after the Indiana Supreme Court scheduled Ritchie’s execution in April, the team began training weekly. Exercises include hands-on IV insertion practice with EMS equipment and infrared vein-finding technology.
Thirty days before an execution, preparations intensify inside the state prison.
The condemned inmate receives a medical evaluation and weekly vein assessments, while the execution chamber is cleaned and inspected weekly, then daily in the final five days. Equipment, supplies and communication systems linking the prison to the governor’s office and the state Supreme Court are tested, and staff conduct trial runs to ensure victims’ families and defense witnesses remain separated.
In the final weeks, prison officials also meet with the inmate to review the lethal injection process, witness lists and options for spiritual counsel or last words.
State law does not provide access for journalists to witness executions unless invited by the condemned person. A federal lawsuit challenging that restriction is still pending. Indiana Capital Chronicle is a plaintiff in the case.
The Indiana Capital Chronicle is an independent, nonprofit news organization that covers state government, policy and elections.
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