In Texas, a Brave, New Lethal Injection

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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.

Until now, Texas, as well as the other capital punishment states, used sodium thiobarbital as the anesthetic. But the American company that manufactured it ceased production last year, and states have had difficulty procuring it from abroad. Britain has prohibited the drug's export for execution purposes, and Germany and Austria have indicated they will not allow companies in their countries to export it. That has led capital punishment states to turn to pentobarbital.*

The major supplier of pentobarbital is the Danish company Lundbeck. A British-based human rights organization called Reprieve has launched a campaign to persuade the company not to sell the drug to states for use in executions. The company has said that it strongly opposes its drug being used for this purpose but that it has no control after selling the drug to wholesalers in America.

Clive Stafford Smith, founder and director of Reprieve, made an "extremely urgent" plea to Lundbeck last Friday asking the company to conduct an analysis of the use of pentobarbital with the other two drugs before they were used to execute Mr. Foster. The three drugs "have never been used together in clinical procedures," nor have there been any controlled trials, Mr. Stafford Smith wrote the company. (Ohio has used pentobarbital in an execution last month, however).

"The effects of the new procedure could be torturous," Mr. Stafford Smith wrote. If the Lundbeck drug does not work properly, Mr. Foster will be subject to "excruciating pain that has been likened to having one's veins set on fire," he wrote.

In response to Mr. Stafford Smith, Lundbeck said that its pentobarbital was not intended for use in executions and, therefore, it could not conduct the analysis.

In response to an email seeking comment, a company spokesman, Anders Schroll, added that Lundbeck had notified the Texas Department of Criminal Justice that it was "adamantly opposed" to the use of its pentobarbital "for the purpose of capital punishment." Such use "contradicts everything we are in the business to do -- provide therapies that improve people's lives."

When it comes to putting animals to sleep, pentobarbital is not an appropriate anesthetic in combination with pancuronium bromide and potassium chloride, according to guidelines by the American Veterinary Medical Association.

Thus, "veterinarians in Texas are prohibited from using the combination of drugs that the Texas Department of Criminal Justice has deemed suitable for the execution of human beings," the report by the Northwestern University law students says.

"It is no exaggeration to say that Texas regulates the euthanasia of reptiles more strictly than the execution of human beings," the report concludes. 

Image: Reuters/STR New


* This story originally said Texas used sodium thiobarbital as the anesthetic. We regret the error.

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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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