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April 1, 2011

"Controversy Follows New Execution Drug"

The title of this post is the headline of this new piece in the New York Times reporting on a new lawsuit filed following the decision by Texas authorities to utilize a new drug in the state's lethal injection protocol.  Here are excerpts:

A decision to change one of the drugs Texas uses for lethal injections in its busy execution chamber has sparked anew the controversy over the state’s death penalty. Two inmates filed suit this week against the state corrections department over its closed-door decision-making process. Lawyers for the inmates also called for a federal investigation into whether the state had illegally obtained death penalty drugs used in nearly all of the state’s previous 466 executions since 1982. And the sole American manufacturer of the drug that Texas plans to use urged state officials not to use it in executions.

The Texas Department of Criminal Justice announced on March 16 that it would use pentobarbital in its three-drug cocktail to carry out lethal injections. Texas and other states with the death penalty were forced to find a substitute for the anesthetic sodium thiopental when its only American producer, Hospira Inc. of Lake Forest, Ill., announced in January that it would stop selling the drug....

Documents made public in the lawsuit show that Rick Thaler, director of the Correctional Institutions Division at the department, did not consult doctors, pharmacists or any medical professionals before he made the decision to switch drugs.... “Based upon the information available to me and reported by my staff, I made the decision to change the execution protocol,” Mr. Thaler wrote [in an affidavit]. He signed off on the new procedure on March 15.

In the lawsuit filed this week in Travis County District Court, the inmates’ lawyers argue that department officials should have abided by the Texas Administrative Procedure Act, which requires agencies to seek public input on rules changes. “The hallmark of the process has been its lack of transparency,” said Maurie A. Levin, one of the lawyers....

A day after filing the lawsuit, lawyers for the Texas death row inmates delivered letters to the United States Department of Justice and the Texas Department of Public Safety seeking an investigation into whether the state illegally obtained death penalty drugs. Purchase orders from the Department of Criminal Justice show that the agency uses a federal Drug Enforcement Agency registration number issued to the Huntsville Unit Hospital, which has been closed since 1983. If an investigation shows that the drugs were obtained illegally, Ms. Levin said, the D.E.A. could revoke or suspend the state’s registration and make the state forfeit its supply of drugs.

Jason Clark, a spokesman for the criminal justice agency, said, “We are still reviewing the allegations, but are confident that we have not violated any state or federal law.”

Lundbeck Inc., the only producer of pentobarbital in the United States, urged state officials in a letter this week not to use the drug. Lundbeck — based in Denmark, which opposes the death penalty — has also sent letters to other states using or planning to use pentobarbital in lethal injections. “We’re dedicated to saving lives,” said Matt Flesch, a spokesman for Lundbeck. “To use our products to end lives contradicts everything we’re in business to do.”

April 1, 2011 at 09:36 AM | Permalink


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"Documents made public in the lawsuit show that Rick Thaler, director of the Correctional Institutions Division at the department, did not consult doctors, pharmacists or any medical professionals before he made the decision to switch drugs."

And if he had consulted them, the objection would have been that medical professionals should not be involved.

We saw a similar Catch-22 argument with 1 v. 3 drug protocols. The 3 drug was attacked as posing an unnecessary risk because the 1 drug was available and sooooo much better. Immediately upon Ohio's announcement it was adopting 1 drug, DPIC began squawking that they were experimenting on human with untested methods.

Posted by: Kent Scheidegger | Apr 1, 2011 1:21:11 PM

Eventually, states are going to have to look for a method not dependent on quixotic foreign or American drug companies. The end result of fighting lethal injection with years of pointless lawsuits and protests against drug companies may well be the return of the chair.

Posted by: MikeinCT | Apr 1, 2011 4:00:18 PM

Why not change over to the firing squad?

Posted by: alpino | Apr 2, 2011 8:14:16 AM

Kent, as usual, hits the nail on the head. This isn't about the effectiveness of pentobarbital. You don't need a medical degree to know that pentobarbital introduced in sufficient quantities and with the right spacing between the injection of the pentobarbital and the pancuronium bromide and KCl, you will not have pain. So the argument is a red herring.

Posted by: federalist | Apr 2, 2011 9:32:23 AM

i will have to gree with federalist here. My only problem with the drug thing was their failure to follow the same laws in getting it from out of the country that the REST OF US have to follow.

As long as it was gotten legaly from within the U.S. My objections are over.

Posted by: rodsmith | Apr 2, 2011 4:02:45 PM

Everytime there is any change in protocol, drugs used or whatever, the attorney is going to file a new appeal. The courts will hear them over and over. They will try everything possible to delay. That is their job. Unfortunately for the victims, they didn't get a chance to appeal for their lives.

Posted by: DaveP | Apr 3, 2011 7:10:18 PM

And that's why judges need to do their jobs. Remember, four hacks on the US Supreme Court voted to delay Landrigan's execution. Of course, they couldn't even be bothered to state their reasons in writing. It's that kind of attitude on the part of the judiciary that needs changing. The stay of an execution is a weighty decision, and one that, for the sake of the victim's family, needs to be set forth in writing, particularly where it's the result of some last-minute filing. The victim's family didn't ask to be in the position that they are in---judges, even US Supreme Court Justices, need to keep that fact in mind. Somehow I suspect that some of them care not a whit.

Posted by: federalist | Apr 3, 2011 9:19:11 PM


unfortunately the victim in death cases takes a back seat most of the time. The longer the case drags on, the victim is forgotten. All the courts care about is the inmates' rights. I am waiting for the Missouri Supreme Court to rule on Nunley/Taylor's Ring issue. Let's see if they care about a girl attacked and killed waiting at her school bus. Several have written briefs to the court wanting to save Nunley.

Posted by: DaveP | Apr 4, 2011 6:44:16 AM

I like what you have said,it is really helpful to me,thanks!

Posted by: Big pony | Apr 11, 2011 5:59:43 AM

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