As usual, Texas is in the spotlight regarding capital punishment, as a big victory was had at the United States Supreme Court this week in stopping the execution of Cleve Foster, who was scheduled to make history as the first person to die in Texas under their new lethal injection cocktail.  Texas would be substituting pentobarbital for sodium thiopental in its three drug cocktail in Foster’s execution, since Texas has also apparently lost its drug supplier.

Yesterday, with only around eight hours to go before the execution itself, the U.S. Supreme Court issued a stay of execution for Cleve Foster.  Read the Order Staying Cleve Foster’s Execution here.  

To follow the Texas execution schedule, go here.  Several men are scheduled to die in the next few months, including Humberto Leal, Foster’s co-appellant in state proceedings challenging the new drug cocktail.  Foster’s case will not stay Texas’ use of pentobarbital in these executions – the High Court isn’t intervening today because of a concern over pentobarbital. 

The Fight in Texas Against Pentobarbital – Read the New, Powerful Joint Report

A few weeks ago, counsel for the American Civil Liberties Union (ACLU) of Texas, the American Civil Liberties Union Foundation Capital Punishment Project and Human Rights Program, and the Center for International Human Rights, Northwestern University School of Law issued a bluntly titled report, “Regulating Death in the Lone Star State: Texas Law Protects Lizards From Needless Suffering, But Not Human Beings.” 

It’s a powerful and important work, and you can read it here.  From the report:

Texas’ lax attitude regarding the taking of human life contrasts sharply with its enactment of detailed regulations to ensure that animals suffer no pain when they are euthanized. Animal euthanasia laws provide strict certification requirements for euthanasia technicians and regulate acceptable methods of intravenous euthanasia down to the correct dosage per kilogram of an animal’s body weight. By contrast, the Texas legislature has failed to enact any legislation to ensure that the individuals responsible for extinguishing human life are properly trained and qualified, and that the drugs they administer are both effective and humane.

Cleve Foster Stay by US Supreme Court NOT Based on Drug Cocktail Challenge

While Foster’s challenge to the use of pentobarbital is strong — and perhaps, given the ACLU Report, the strongest so far on not executing people like vets euthanize pets — the stay granted by the High Court was not based upon its need to consider arguments regarding execution methods.

No.  The stay of Cleve Foster’s execution was based upon arguments that  he received ineffective legal representation in both his trial and during his appellate process when his lawyers did not challenge the state’s blood-spatter evidence which prosecutors argued linked Foster to the rape and murder of Nyaneur Pal in Fort Worth, Texas, back in 2002. Experts disagree on whether that blood-spatter evidence shows the body had been moved (the state’s contention) or whether Pal had been killed where her body was discovered (Foster’s contention). 

 The State of Texas has thirty (30) days to respond to the arguments addressed in Foster’s petition for rehearing.   

Today, there is an understandably large amount of news coverage aboutthe state of Illinois abolishing the death penalty – with the Illinois governor waiting until the eleventh hour to make his decision on whether he would stand on the matter.  It’s big news and it should be.

However, in Ohio there is also very big news regarding capital punishment in this country.  Ohio has just set precedent by using 5 grams of pentobarbital to execute Johnnie Baston. 

No three drug cocktail here (like they’ve done in Oklahoma with pentobarbital).  Here, the single drug was injected, and according to Associated Press reporter Andrew Welsh-Huggins, Baston "gasped" and "grimaced" several minutes after the drug was administered. 

This is the same drug that is used to euthenize animals. 

This is the same procedure used to euthenize pets. 

Oklahoma’s John Duty may go down in history as being the first man that was executed with pentobarbital used in the lethal injection.  However, Ohio’s Johnnie Baston has just earned his own place in the record books as being the first human being in America to be executed in the exact same way that American vets put beloved pets to sleep. 

In Ohio, executing a man and putting down a dog or cat — no difference.

Surely someone sees something wrong here????

Seems Tennessee can’t find a supplier for its lethal injection executions using a three drug cocktail that includes sodium thiopental (guess they haven’t called Besse Medical), so pentobarbital is apparently being considered as a substitute. 

According to its state website, Tennessee has a long execution history, with hanging and the electric chair as two prior methods — electrocution still being a viable alternative that has been used as late as 2007:

Until 1913, all individuals convicted of a capital offense were hanged. There are no official records of the number or names of those executed. From 1913 to 1915, there was no capital punishment in Tennessee. C. Rye was Governor during the first execution by electrocution. From 1916 until 1960, 125 persons were executed by electrocution in Tennessee. In 2000, lethal injection replaced electrocution as the primary method of execution. In September, 2007 the first electrocution in 47 years was carried out.

Oklahoma has decided upon pentobarbital.

Of course, there’s already a precedent set for using pentobarbital that Tennessee could follow.   Oklahoma already treated John David Duty, Billy Don Alverson, and Jeffrey David Matthews  just like veterarians treat dogs and cats all over the country, when they used pentobarbital in their executions.  And apparently, Oklahoma is fine with this and plans to continue using pentobarbital, according to its website description of its execution methods.

Meanwhile, Tennessee isn’t having such an easy time here. 

According to an article written by Brian Haas in the Tennessean earlier this month, entitled, "Tennessee has few options for execution drugs; Imports, sedative used to put down animals face likely challenges," Tennessee has 86 men on Death Row — but not nearly enough sodium thiopental to handle the demand.   However, Tennessee isn’t having the smooth transition to vet-drugs that Oklahoma did.

Tennessee wouldn’t need to enact new law before changing over to the alternative drug, it’s an adminstrative decision apparently that can be made rather quickly and without lengthy review in advance.  Still, the state officials aren’t rushing to adopt Oklahoma’s example (like Ohio appears to be doing).

Maybe Tennesse will consider the warnings of anesthesiologists and others in the medical community that are warning against assuming that pentobarbital will act on humans like it acts on dogs.   

Returning to electrocution vs. using pentobarbital?  Are these really the only options, Tennessee?

The Food and Drug Administration (FDA) became the defendant in a civil suit filed this week by six Death Row inmates who face execution in Arizona (3 plaintiffs), California (2 plaintiffs), and Tennessee (1 plaintiff) as they seek a declaratory judgment from the federal judge presiding over the United States District Court for the District of Columbia that it is against federal law for the FDA to allow states to use imported sodium thiopental in their executions — and that the FDA was wrong to issue its announcement that doing so was okay.  No news to the FDA – there was a public meeting last month where the players met to discuss the issue, clearly without resolution (or maybe, the meeting was just a chance for the opponents to eyeball each other). 

The Wall Street Journal provides a copy of the newly filed complaint here, if you wish to read the entire pleading.

Represented by the Arizona District’s Federal Public Defender’s Office and the high-powered law firm of Sidley Austin, this looks to be a major courthouse fight over the use of lethal injection drugs purchased outside the U.S. borders – at least, until the F.D.A. approves them as being acceptable under American standards.  Sidley Austin is already instituting its media strategy, getting the word out with a press release this week, and we should all expect to see more new release updates from the plaintiffs as the fight progresses. 

What’s This Litigation Really Going to Do?

There are those that are hoping that closing the borders to the importation of this drug will somehow stop executions in this country.  That’s not going to happen:  not only do we still have other American suppliers that may step into the gap (and yes, we mean Besse Medical in Ohio), but there are already other execution methods on the books – legal alternatives to the lethal injection method that have been sanctioned as constitutional by the U.S. Supreme Court. 

Utah had its firing squad execution last year, without tremendous public outcry, remember?  An argument can be made that not allowing British companies, for example, to sell sodium thiopental to Arizona, for example, can force us all back to these alternative execution methods – which seem much less merciful, somehow.  

On January 21, 2011, via its website, Illinois drug manufacturer Hospira, Inc. fired a shot heard ’round the world as it announced in a short and sweet press release that it would no longer be making sodium thiopental (product name, Pentothal™).  According to Hospira:

Hospira had intended to produce Pentothal at its Italian plant. … [W]e cannot take the risk that we will be held liable by the Italian authorities if the product is diverted for use in capital punishment. Exposing our employees or facilities to liability is not a risk we are prepared to take.

In short, the Italian government was not pleased that the American drug company was going to be making a drug used in executions not on American soil, but on Italian, and said so.  Italy would not allow any sodium thiopental made at a plant within its border to be exported out of the country unless Hospira could guarantee it would not ultimately be used to kill people, and be willing to be liable to the Italian government for any executions that might slip past Hospira’s watch.  (What a warranty, right?)

Hospira chose to forego making the product at all.  Hence, the press release last week and the firestorm that has resulted. Because, as we know, this comes on the heels of a major shortage of the drug that has impacted state death rows for over a year now. 

What happens to state executions schedules now?  

When Hospira announced a delay, some states just stayed their execution schedules.  Others tried to move forward with alternatives.  For example: 

1.  Ohio went for a single-drug lethal injection method. 
2. Oklahoma substituted pentobarbital in their three-drug cocktail, the same drug that is used to euthanize dogs and cats. 
3. Arizona went overseas to buy more product.

Florida, and other states, could follow any one of these three examples.  Or, as the Miami Herald points out, Florida can always return to another form of execution that is still legally viable: the electric chair. 

Other forms of execution that are still legal alternatives include the firing squad; hanging; and the gas chamber.  (For which states allow which method, please refer to our earlier post.)

Global Response: Try to Use Marketplace to Halt American Death Penalty

Yesterday, Germany announced it will not allow the export of sodium thiopental to the United States.  Since Arizona’s supplier was from Great Britian, Germany’s announcement does not carry that much power in the market. 

Meanwhile, Texas reveals it has a domestic supplier – Ohio’s Besse Medical.

It took the Associated Press using the Open Records Act to gain access to this information, but it has been revealed that Texas has a source of execution drugs here in the United States (although Texas worked hard to keep this information to itself). 

Besse Medical is a domestic supplier of sodium thiopental.  Now. 

So, while Hospira’s press release  may be getting lots of attention, it’s not the biggest news.  Besse Medical is just stepping into the gap, and apparently has been doing so for awhile now.