Robert James Campbell is scheduled to be executed in Texas tomorrow. This morning, his attorneys filed a stay motion and an appeal with the Fifth Circuit, urging the court to reconsider its jurisprudence regarding the secrecy surrounding Texas’ lethal injection drugs, particularly in light of the recent horrific botched execution in Oklahoma. Campbells’ attorneys aren’t alone; a federal judge echoed their sentiment on Friday.
Mr. Campbell’s “8th Amendment rights can only be protected if he is provided the information required to ensure a humane, non-torturous execution. By depriving [Mr. Campbell] … of the means to determine whether his rights will be violated, Defendants are effectively nullifying those rights.”
Last week, following the torturous execution of Clayton Lockett in Oklahoma, Mr. Campbell filed a civil rights action and stay motion in the U.S. District Court for the Southern District of Texas. He’s seeking information about the source and testing of the drugs Texas plans to use in his lethal injection execution. It was only recently, with its purchase of the most recent batch of lethal injection drugs, that Texas began to follow the path of secrecy shared by Oklahoma in the weeks leading up to Mr. Lockett's horrific death.
On Friday, May 9, 2014, Judge Keith P. Ellison of the U.S. District Court for the Southern District of Texas denied Mr. Campbell’s stay motion, writing: "The horrific narrative of Oklahoma’s botched execution of Clayton Lockett on April 29, 2014 requires sober reflection on the manner in which this nation administers the ultimate punishment. While the law currently does not permit injunctive relief, this Court urges the Fifth Circuit to reconsider its jurisprudence that seems to shield crucial elements of the execution process from open inquiry."
Maurie Levin, Mr. Campbell’s attorney, commented, “The extreme secrecy which surrounded lethal injection in Oklahoma prior to Mr. Lockett’s execution led directly to the disastrous consequences. 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.”
Texas' lethal injection protocol calls for a single dose of pentobarbital. Pentobarbital is no longer legally available in FDA-regulated form, but only from compounding pharmacies, which operate outside of FDA oversight. This execution drug secrecy makes it impossible to know if the drugs have been properly prepared and tested in order to ensure the execution will be carried out in a manner that in line with the Constitution. In addition, documents show that TDCJ is in possession in midazalom, the first drug used in the botched execution of Mr. Locket.
Executions in Oklahoma and South Dakota that used compounded pentobarbital have had serious problems:
- On January 9, 2014, Oklahoma executed Michael Wilson, presumably also using compounded pentobarbital as the first drug in the three-drug formula. Prior to losing consciousness, Mr. Wilson cried out, "I feel my whole body burning." Those were his last words. The State has refused to provide any information about what might have gone wrong in Mr. Wilson's execution, but expert pharmacologist Larry D. Sasich, PharmD, MPH, FASHP, signed a sworn affidavit stating, "It is my opinion that Mr. Wilson's reaction is consistent with contaminated pentobarbital sodium injection." Anesthesiologist Dr. Waisel agreed with Sasich’s assessment, and similarly signed a sworn affadavit.
- In October 2012, in South Dakota, Eric Robert was executed using compounded pentobarbital. Witnesses reported that he “appeared to clear his throat and gasp heavily, at which point his skin turned a blue-purplish hue. Mr. Robert opened his eyes and they remained open until his death, and his heart continued beating for 10 minutes after he ceased to breathe.”
- On April 14, 2014, in Texas, Jose Villegas was executed with compounded pentobarbital. “As a journalist witness wrote: “Just as the dose of pentobarbital began taking effect, he said, ‘It does kind of burn. Goodbye.’ He gasped several times, then began breathing quietly.”
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