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Texas Execution Tomorrow Risks Needless Pain and Suffering

Anna Arceneaux,
Senior Staff Attorney, ACLU Capital Punishment Project
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April 4, 2011

Tomorrow, Texas plans to execute Cleve Foster using a brand new, untested lethal injection protocol. If this protocol doesn’t work properly, Foster could suffer excruciating pain during the execution.

Most death penalty states across the country employ a three-drug cocktail in their lethal injection procedures. A recent national shortage of sodium thiopental, an anesthetic which is the first drug administered, has left Texas and several other states scrambling to find substitutes, in their haste to keep executions running on schedule. After Texas’ remaining supply of sodium thiopental expired in March, Texas Department of Criminal Justice (TDCJ) Director Rick Thaler announced that he would substitute a new drug — pentobarbital — for the sodium thiopental.

There is no evidence Texas has ever engaged in a meaningful assessment of whether pentobarbital can or should be used in combination with the other two drugs administered in lethal injections, pancuronium bromide and potassium chloride. And if the pentobarbital doesn’t work properly, Cleve Foster could suffer excruciating pain when the next two drugs are administered.

These unscrutinized, last-minute changes mean that when it comes to being put to death in Texas, it’s better to be a lizard than a human being.

According to a report released today by the ACLU, the ACLU of Texas, and the Center for International Human Rights at Northwestern Law School, the manner in which Texas carries out the execution of human beings is riskier, less transparent, and subject to less oversight than the euthanasia of cats, dogs, birds, and lizards.

Animal euthanasia laws in the state mandate 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. Texas legislators, however, have failed to enact any legislation to ensure that the individuals responsible for extinguishing human life are properly trained and that the drugs they administer are effective and humane.

And this failure could have real consequences. According to the report, Texas risks causing excruciating pain during executions by failing to subject a new drug it plans on using in lethal injections to expert analysis or public scrutiny.

Tomorrow’s planned execution reflects a broader pattern of the TDCJ keeping information about its execution process from the public eye. The ACLU opposes executions in all circumstances, but as long as Texas continues to take human life, no execution should take place before this new and untested protocol has been vetted. Decisions involving the government’s taking of human life should never be cloaked in secrecy.

The Texas Board of Pardons and Parole and Texas Governor Rick Perry should stay all pending executions, including tomorrow’s scheduled execution of Cleve Foster, until the Texas legislature enacts measures that provide, at a minimum, the same protections to human beings condemned to die as those provided to a lizard. The judiciary should also require the TDCJ to allow for public scrutiny and expert assessment of its new lethal injection protocol before it is used on human beings.

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