By SELWYN CRAWFORD and MATTHEW HUISMAN
The attorney for the next person scheduled to die by lethal injection blasted a decision by Texas prison officials Wednesday to alter the way executions are carried out – the first significant change in Texas’ capital punishment protocol in more than two decades.
Prison officials announced Wednesday that they will substitute pentobarbital for sodium thiopental in the three-drug cocktail currently used in executions. Both drugs are anesthetics, but the sole U. S. manufacturer of sodium thiopental announced earlier this year that it would no longer make it. That set off a scramble by Texas – whose supply of sodium thiopental expires at the end of the month – and other death penalty states to find an alternative.
Cleve Foster, convicted of the 2003 murder of Nyanuer “Mary” Pal in Fort Worth, is scheduled to be the first person executed using the new drug on April 5.
“There is no way for us to know what they’ve done to ensure the constitutionality of the way they’re going to execute our client,” said Foster’s attorney, Maurie Levin. “We don’t know what they’ve done to prepare the execution team to ensure the safety of the process.”
Michelle Lyons, a spokesperson for the Texas Department of Criminal Justice said Ohio and Oklahoma have already switched to pentobarbital.
“It has successfully been used before in an execution,” Lyons said. “It has been done in Oklahoma, and its protocol is the same one we use, the three-drug cocktail. Plus, it has withstood legal challenges in Oklahoma as well.”
Levin said that she is considering legal action to halt Foster’s execution.
“Every state has a different execution team and execution chamber,” Levin said. “Those are the details that determine the adequacy of the process.”
The sole U.S. manufacturer of pentobarbital expressed displeasure at the decision by Texas officials.
“We strongly oppose its use to end lives as it contradicts everything we’re in business to do, which is to provide therapies to help people and improve their lives,” said Matt Flesch, communications manager for Lundbeck Inc. of Deerfield, Illinois. “We have sent a letter to the Department of Corrections in Texas asking them not to use the drug.”
Flesch said the company is reviewing “additional methods to control the drug’s misuse” but would not elaborate.
Illinois-based Hospira Inc. announced in January that it would stop producing sodium thiopental because lawmakers in Italy, where Hospira opened a factory, demanded that it no longer be used in executions.
According to the Death Penalty Information Center, almost all 35 death penalty states used the same three-drug combination to carry out the sentences: sodium thiopental, the anesthetic; pancuronium bromide, which paralyzes the muscles and potassium chlorides to stop the heart.
“I do think this is a bit of experimentation on human subjects, on unwilling subjects,” said Richard Dieter, executive director of the Death Penalty Information Center. “You shouldn’t get to experiment on people just because they’re on death row. The state always takes the viewpoint that they know what they’re doing and you can trust them. As we know, things do go wrong.”
Houston defense lawyer Phillip H. Hilder derided the pentobarbital choice and said that Texas prison officials needed to be more “transparent” in making the decision. Hilder predicted that the move would ultimately wind up in the courts.
“The fact that it has been used and individuals executed doesn’t mean that it’s humane,” Hilder said. “It may mean that it’s effective, but not humane. Electrocution is effective but has been proven to not be humane. You have to dig deeper.”