In Texas, a Brave, New Lethal Injection

A drug so painful that veterinarians aren't allowed to administer it to animals will soon be used to execute Cleve Foster

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Updated 12:12 p.m.: The Supreme Court granted a temporary stay of the execution of Cleve Foster based on whether he received adequate counsel during the course his trial. 

Texas prison officials are about to carry out an execution with a combination of drugs and procedures that they have not used before, and that a veterinarian is proscribed from using when terminating an animal's life.

In order to minimize pain and suffering of animals being put to sleep, Texas has adopted detailed regulations. Only a licensed veterinarian may administer the drugs, the dosage is determined by the animal's weight, and even the lighting in the room is regulated by law.

If the Lundbeck drug does not work properly, Mr. Foster will be subject to "excruciating pain likened to having one's veins set on fire."

When it comes to carrying out executions of death-row inmates, however, the state does not take the same care. The Texas legislature has given the director of the Texas Department of Criminal Justice the absolute power to decide on the drugs used and how they will be administered. The current director is a former corrections officer with no training in anesthesiology, pharmacology, or science.

"Death-row inmates appear to have fewer rights than domesticated animals," concludes a study released on Sunday, "Regulating Death in the Lone Star State: Texas Law Protects Lizards from Needless Suffering, But Not Human Beings" (PDF). The 10-page report was written by the ACLU of Texas, the ACLU Capital Punishment Project, and the Center for International Human Rights at Northwestern University School of Law.

The study is part of a last-minute effort to block the execution of Cleve Foster, who is scheduled to die by lethal injection in Texas at midnight Tuesday. Foster, an army veteran who fought in Desert Storm, was convicted for the murder of a woman he and a friend had met in a bar. Foster has said he had passed out from a drug overdose and that the other man killed the woman.

In executing Foster, Texas will use a protocol of three drugs that it has not used before, and this is where the anti-death penalty activists come in. The first drug in the protocol, pentobarbital, is intended to anesthetize the condemned man (or the animal), so that he does not suffer when the next two drugs are administered. They are pancuronium bromide, a paralytic agent, which paralyzes lung muscles and disguises any outward signs of pain before the third drug, potassium chloride, which stops the heart, is injected.

The Supreme Court has held, 7-2, that the Eighth Amendment proscription on cruel and unusual punishment does not bar lethal injection as a means of execution. In a concurring opinion, Justice John Paul Stevens noted nevertheless that most states do not allow pancuronium bromide in the euthanasia of animals.

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Raymond Bonner is an investigative reporter living in London. He was previously a foreign correspondent for The New York Times and a staff writer at The New Yorker, and is the author of Anatomy of Injustice: A Murder Case Gone Wrong.

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