Texas laws more strictly regulate euthanasia of animals than the lethal injection of death row inmates, according to a report released Sunday by the American Civil Liberties Union, the ACLU of Texas and the Center for International Human Rights at Northwestern University Law School.
The report comes as the Texas Department of Criminal Justice is set tomorrow to conduct the first execution using pentobarbital in the three-drug cocktail used for lethal injection. Texas, like all other death penalty states, was forced to find a new death penalty drug after the only American manufacturer of sodium thiopental — the drug used previously — announced it would stop selling it in the United States. The TDCJ announced on March 16 that it would use pentobarbital instead of sodium thiopental.
State laws specifically designate who can administer drugs and the types and dosages of drugs to be used when dogs, cats, and even reptiles, are put down, the report says. But when it comes to lethal injection, the law only states that it should be carried out “by intravenous injection of a substance or substances in a lethal quantity sufficient to cause death.”
"We are calling on the Texas Board of Pardons and Paroles, Gov. Rick Perry and the courts to stay pending executions until the Legislature enacts measures that provide at least the same protections to human beings condemned to die as are provided to sick or unwanted animals,” said John Holdridge, director of the ACLU Capital Punishment Project.
The ACLU argues in the report that not enough is known about how pentobarbital works in combination with other drugs administered in the lethal injection protocol to ensure a painless death. "The failure of this drug in its intended use would cause everyone’s worst surgical nightmare: total paralysis and excruciating pain,” said Lisa Graybill, legal director at the ACLU of Texas.
Michelle Lyons, a spokeswoman for TDCJ, said the ACLU report inaccurately classifies pentobarbital as a "veterinary drug." "While it may be used in the euthanasia of animals, pentobarbital has been used for medical purposes in humans for some time. In fact, pentobarbital has been used in legal physician-assisted suicide in Oregon; in 2002, pentobarbital was used in 34 of the 38 physician-assisted suicides."
The combination of drugs Texas plans to use in its executions, Lyons said, creates no substantial risk of pain.
Lawyers for Cleve Foster, the death row inmate scheduled to die tomorrow, have asked Texas courts to stop the execution, claiming the way TDCJ adopted the death penalty protocol violated state transparency laws, because it was done without public input. Travis County District Judge Stephen Yelenosky denied that request on Friday, agreeing with state lawyers that the Administrative Procedure Act does not apply to rules regarding inmates. Maurie Levin, one of Foster's attorneys, filed an appeal of that decision today with the 3rd Court of Appeals of Texas.
Update: Lawyers for Foster sent Perry a letter today asking him to grant a reprieve because of the ongoing questions about the use of pentobarbital and concerns about the way Texas obtained the drug. Foster's lawyers have asked federal officials to investigate whether the TDCJ illegally obtains its lethal injection drugs because it is registered with the DEA under the auspices of the Huntsville Unit Hospital, which closed in 1983. "The rush to execute should not trump the need to ensure that appropriate safeguards have been taken," Levin wrote.
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