Early last year, before Louisiana used nitrogen gas for the first time in an execution, a top state prison official testified that lethal injection wasn’t a viable option.

With pharmaceutical companies threatening to withhold other medication that the state relied on to treat chronic conditions among inmates, it wasn’t worth the risk, said Seth Smith, chief of operations for the Department of Public Safety and Corrections.

“I’m afraid that we would lose our possibility of getting life-saving drugs that we need for other people,” Smith testified in the case of Jessie Hoffman, who was put to death with nitrogen gas less than two weeks later in March 2025.

But this week, state officials told a federal judge that obtaining a lethal injection drug, pentobarbital, for executions was not a problem at all. The revelation came as state officials sought to deny death row inmate Todd Wessinger a fresh avenue to challenge his impending execution date.

At a status conference Wednesday before U.S. District Judge John deGravelles, a state lawyer “initially stated that pentobarbital is available to the State as an alternative to nitrogen hypoxia and that there is no dispute on this,” according to the court minutes.

But the lawyer, Elizabeth Brown, then retracted that statement, saying she didn’t know if the state possessed the drug or whether it would have to disclose it, and she “suggested that its possession of (or ability to obtain) pentobarbital was beyond the scope of this litigation and immaterial to the issues before the court.”

The judge, an appointee of former President Barack Obama, disagreed, the court record shows. After he “encouraged the parties to work together to resolve many of the factual issues such as the availability of pentobarbital,” more details emerged.

“Defense counsel clarified that the State does not have pentobarbital on hand, but, if Wessinger chooses that as an option, pentobarbital is readily available within the time frame necessary for an execution.”

Wessinger argues that he should be allowed to be executed by single-drug lethal injection rather than nitrogen gassing.

The state’s formal response was to agree to kill Wessinger with only pentobarbital if he chose it. Corrections Secretary Gary Westcott, who is empowered to select the execution method among those authorized in state law, wrote in an affidavit that he was ceding the choice to Wessinger.

“The only way Plaintiff will be executed by nitrogen hypoxia is if he voluntarily declines to elect pentobarbital and thus voluntarily agrees to be executed by nitrogen hypoxia,” state lawyers wrote.

State officials and attorneys for Wessinger were mum after the closed-door status conference.

Attorney General Liz Murrill declined to comment about what’s changed with the state’s ability to access lethal injection drugs, citing the litigation. “Our statement is that if Wessinger’s preferred method is pentobarbital, we will accommodate that request,” she said.

Nitrogen gas vs. pentobarbital

Wessinger filed his lawsuit last month to prevent the state from killing him with nitrogen gas, arguing it’s unconstitutionally cruel. As an alternative, he offered single-drug pentobarbital.

His lawsuit was filed weeks before the botched Sept. 30 execution of Christa Pike by the same method in Tennessee. Pike survived two doses of the drug and spent 10 days in the hospital before being discharged back to prison.

A report this week in the local newspaper there, The Tennessean, found that the state has spent nearly $1.2 million on lethal execution drugs since the start of 2023.

Less is known about Louisiana’s procurement of either nitrogen gas or lethal drugs. Other than a required review by the state Inspector General for potential financial conflicts with lawmakers, the same law that expanded Louisiana’s execution methods in 2024 — adding gas and returning electrocution — cloaked their procurement in secrecy.

Wessinger was sentenced to death for killing two employees during a 1995 robbery at a Baton Rouge restaurant. He has fought his death sentence for decades. A federal appeals court recently denied him. Among the 55 prisoners on Louisiana’s death row, Wessinger is considered closest to an execution date.

Earlier this month, Baton Rouge District Attorney Hillar Moore said he plans to apply for a death warrant. Once signed by a judge, the order would set the date, time and location for the state to execute Wessinger.

The death warrant would be submitted to Baton Rouge District Judge Gail Horne Ray’s courtroom, but Murrill’s office has a pending motion to recuse the judge from the case.

Ray and other judges have an active civil lawsuit against the state in which Murrill’s office is a defendant. Murrill has argued that the plaintiff judges in that case should not be allowed to rule on any cases — including Wessinger’s — that involve the attorney general.

Corrections officials declined to comment this week when asked about how the state plans to acquire lethal injection drugs.

Drug company ultimatums

In his testimony in federal court last year, Smith said the agency had received “multiple correspondence” from various drug companies prohibiting the use of their products for lethal injections.

“They all told us the same thing,” Smith testified. “If we get caught using one of their drugs, they are no longer going to supply drugs we need to treat people.”

He added that those ultimatums from drug companies did “not have an expiration date.”

Other states have obtained pentobarbital by routing around drug manufacturers and using compounding pharmacies that take raw ingredients to make drugs. Compounded pharmaceuticals do not require approval from the U.S. Food and Drug Administration.

Oklahoma was the first state to authorize executions by nitrogen gas as states struggled to acquire lethal injection drugs. Mississippi, Alabama, Louisiana and Arkansas followed, though only Alabama and Louisiana have used the gas in executions so far.

Alabama was the first to try nitrogen gas, using it for seven executions before the Atlanta-based Eleventh Circuit Court of Appeals in June barred its use to kill double murderer Jeffery Lee. Alabama turned last month to lethal injection instead to execute Lee.

Louisiana modeled its nitrogen gas execution protocol after Alabama’s.

Wessinger’s federal case has its next court date scheduled for Nov. 2.