Fordham Law

Texas prepares for 1st execution in nation since botched Oklahoma one

Deborah Denno in The Los Angeles Times, May 13, 2014

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Texas is planning Tuesday to carry out the nation's first execution since Oklahoma officials botched an execution last month, prompting outrage and a state review of lethal injection procedures.

Oklahoma's governor ordered the review after Clayton Lockett, 38, failed to die immediately during his execution April 29, struggling and moaning as he lingered for 43 minutes before succumbing to an apparent heart attack. Prison officials later blamed a collapsed vein, but autopsy results are pending.

Attorneys for the Texas inmate scheduled to die, Robert Campbell, have appealed to the governor and courts for a stay of execution on two main grounds: that he suffers from mental retardation and that he is entitled to know the details of the state's execution procedures, which have not been fully disclosed.

The attorneys have argued Texas should especially be compelled to disclose the details of its lethal injection procedure in light not only of Oklahoma's botched execution, but problems with other lethal injections. They noted that when Jose Villegas, 39, was executed last month in Texas for murdering his girlfriend, he complained of burning, as did an Oklahoma inmate executed in January.

Campbell, 41, was convicted of murder for the 1991 killing of a 20-year-old Houston bank teller who was robbed, raped and shot. He is scheduled for execution at 6 p.m. Central Daylight Time on Tuesday.

Two years ago, Texas switched from a three-drug lethal injection formula similar to Oklahoma's to a single drug due to drug shortages after manufacturers and distributors facing protests against capital punishment restricted their supply, according to Jason Clark, a spokesman for the Texas Department of Criminal Justice.

The single barbiturate that Texas now uses, pentobarbital, has also been in short supply. So, like Oklahoma and other states, Texas turned to compounding pharmacies, which manufacture drugs without FDA approval.

The state has used the drug in 33 executions, but has so far refused to identify which compounding pharmacy or pharmacies supply it, Clark said.

"We're not disclosing the pharmacy because threats have escalated to threats of physical harm and death," Clark told the Los Angeles Times.

Oklahoma officials have also refused to identify their compounding pharmacy supplier, citing safety concerns for the company.

Maurie Levin, one of Campbell's attorneys, insisted the information should be made public to ensure the lethal injection meets accepted standards.

"The extreme secrecy which surrounded lethal injection in Oklahoma prior to Mr. Lockett's execution led directly to the disastrous consequences," Levin said in a statement released to The Times.

"This is a crucial moment when Texas must recognize that death row prisoners can no longer presume safety unless full disclosure is compelled so that the courts can fully review the lethal injection drugs to be used and ensure that they are safe and legal," she added.

The 5th U.S. Circuit Court of Appeals late Monday rejected his appeal based on Texas' refusal to disclose all information related to its lethal injection protocols, saying there wasn't enough evidence that the execution would violate constitutional prohibitions on cruel and unusual punishment.

Another appeal before the U.S. 5th Circuit Court and the U.S. Supreme Court argues Campbell isn't mentally competent for execution because he has an IQ of 69, below the minimal threshold set by most courts.

Texas Atty. Gen. Greg Abbott, a Republican campaigning for governor, has opposed staying Campbell's execution. In a Monday court filing he argued the state's execution procedure is "vastly different" from Oklahoma's, that pentobarbital has been used successfully thus far in Texas and testing showed the batch of the drug the state plans to use is potent and "free of contaminants."

Campbell's execution would be the eighth this year in Texas, which puts more inmates to death than any other state — 515 since lethal injections began in 1982. In fact, Texas has executed more inmates than the next half-dozen busiest death penalty states combined (Virginia, Oklahoma, Florida, Missouri, Alabama and Georgia).

But that wasn't always the case. Texas executed fewer than 10 people a year until 1992, when executions jumped under then-Gov. Ann Richards, a Democrat. The current governor, Republican Rick Perry, has presided over more executions than any governor in modern history.

Deborah Denno, a professor at Fordham Law School and a death penalty expert, cautioned not to assume that because Texas executes so many inmates that officials have the benefit of experience.

"To assume that they have the volume and people must know what they’re doing is wrong," Denno told The Times. "You can't assume the same people perform all executions or that same protocol used, same amount of drug or same drug because this is a compounded pentobarbital in Texas. We don’t know whether the same company is being used, whether one batch looks the same as another. So there's an enormous amount of variability in this execution."

Denno said the single-drug lethal injection using a sedative like pentobarbital to induce respiratory arrest has been shown to be more humane and effective with fewer botches, since it only has to be administered once, and does not include a second drug, a paralytic, that has been problematic and led to numerous legal challenges.

But she said even if the pentobarbital works, there are still questions about the expertise of those administering the lethal injection.

Texas execution protocol requires each lethal injection "drug team" to have "at least one medically trained individual," including a certified medical assistant, emergency medical technician, phlebotomist, paramedic or military corpsman.

All Texas inmates are executed at the same prison, the Walls Unit in Huntsville, about an hour's drive north of Houston.

The city of about 39,000 is home to Sam Houston State University, but it is more commonly known for being the headquarters of the state prison system and home to the busy death chamber, which earned it the nickname "The Death Penalty Capital of the World."

Executions are such an everyday matter in Huntsville that Jim Willett was surprised when he started getting phone calls from reporters this week.

"It's the usual thing in town," said Willett, former warden at the Huntsville prison, now director of the nearby Texas Prison Museum that houses, among other things, the state's decommissioned electric chair, "Old Sparky."

As warden, Willett oversaw scores of executions. He recalled only one botched execution -- Raymond Landry Sr. in 1988 -- when he worked at the prison but was not yet warden.

Usually officials used two needles for the lethal injection, saving one for backup. In Landry's case, they had trouble finding a vein, so they used just one needle, he said, "And the needle came out.”

A tube attached to the needle began leaking and shooting drugs across the death chamber toward witnesses, according to reporters' accounts. The warden pulled a curtain to block their view of Landry.

When prison officials reopened the curtain minutes later, Landry was motionless with his eyes half-closed, and a few minutes later he was declared him dead.

"They just started all over and the execution went forward," Willett said.

Willett said he was confident Tuesday's execution would proceed as planned.

"They're done very professionally and the people who do them are familiar with the process and know how to do their job," he said.

In addition to witnesses, several reporters are expected to attend Tuesday's execution, including reporters for the Associated Press, Houston Chronicle and Huntsville Item. The Texas Department of Criminal Justice has so far refused a Houston-based Los Angeles Times reporter's requests to attend executions, citing a policy that bars "media not directly connected to the case."

"Selected media must be located in and have a significant circulation or viewership in the county in which the crime occurred, or be from some other location that has a strong connection to the offender or the crime (e.g., if the offender had been a well-known resident of another town)," officials said.