Lawsuit: Void Texas’ new execution procedure

Deborah W. Denno in The Austin American-Statesman, March 29, 2011

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Texas’ new procedure for executing condemned murderers should be invalidated because prison officials did not comply with state law in adopting it, two condemned murderers alleged this morning in a new lawsuit seeking to block their scheduled date with the death chamber.

In a suit filed in an Austin state court, attorneys for Cleve Foster and Humberto Leal contend that Texas’ new execution protocol — replacing sodium thiopental with pentobarbital as one of three drugs used in lethal injections — violated the state Administrative Procedures Act.

Reason: Officials with the Texas Department of Criminal Justice did not follow proper procedure in adopting the new protocol.

According to the suit, TDCJ announced on March 16 — less than three weeks before Foster’s scheduled execution — that it would change the drugs used. Foster is slated for execution on April 5.

The lawsuit contends that since November 2010, Foster made numerous public information requests and pleas for information regarding the drugs TDCJ planned to use to execute him, but prison officials delayed their response and made the decision to change drugs without required public input — or input from Foster and other condemned convicts.

“Executions, and the manner in which we carry them out, are of unique public interest and importance, and precisely the sort of decisions and procedures that should be aired in the light of day,” said Maurie Levin, Foster’s attorney.

“The requirements of transparency, deliberation, and accountability reflected in the APA are even more imperative when we are carrying out the ultimate act that Texas can take against one of its citizens. In its rush to execute Mr. Foster, Texas has violated the law and circumvented the open government process.”

Court officials said no hearing has been set in the case.

If the Travis County court invalidates the change in drugs because state law was not followed, the state would be forced to resort to using the previous drug — which has become unavailable in the United States.

Leal, a Mexican citizen, is scheduled for execution on July 7.

Prison officials said they had no immediate comment on pending litigation. Some officials had earlier said they expected legal challenges when the execution drug was changed.

Some legal experts were critical of the process Texas used to change its lethal drug mix, as well.

“Lack of transparency and the problems that ensue from it constitute one of the largest challenges to ensuring constitutionally viable lethal injection procedures, said Deborah Denno, a law professor at Fordham University and a nationally recognized expert on the death penalty and injection.

“The State of Texas’s under-the-table method for dealing with a drug shortage is unacceptable and adds to the ongoing pattern of debacles the state has experienced since its first-ever lethal injection execution in 1982.”