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"Prisoners do not have an equal protection right under the U.S. Constitution's
Fourteenth Amendment to have the compounded drug retested before its use in
their executions."
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Denying five death row inmates' bid for a stay of execution, the U.S. Court of Appeals for the Fifth Circuit recently ruled that Texas' current form of execution by lethal injection does not violate the Eighth Amendment's ban on cruel and unusual punishment.
The five condemned Texas prisoners are the latest to challenge the lethal injection form of execution in the United States. Last year, the U.S. Supreme Court ruled 5-4 in Glossip v. Gross that the three-drug cocktail Oklahoma uses to execute prisoners did not violate their Eighth Amendment rights.
In 2012, Texas adopted its current execution protocol: a single, five-gram dose of pentobarbital to induce death. The state had previously purchased pentobarbital from a Danish company that later refused to sell the drug to states that execute by lethal injection. In response, Texas began purchasing pentobarbital that is compounded by pharmacies.
Even though 32 people have been executed in the state using compounded pentobarbital without incident, the five Texas prisoners requested stays of execution, alleging the compounded drug still posed a risk of unnecessary pain and should be retested before their executions.
In a Sept. 12 decision in Wood v. Collier, Fifth Circuit Judge Patrick Higginbotham noted that when pentobarbital is the sole drug used to execute, unconsciousness precedes death. He also concluded that the five prisoners did not have an equal protection right under the U.S. Constitution's Fourteenth Amendment to have the compounded drug retested before its use in their executions.
"However one kneads the protean language of equal protection jurisprudence, the inescapable reality is that these prisoners have not demonstrated that a failure to retest brings the unnecessary pain forbidden by the Eight Amendment," Higginbotham wrote. "Attempting to bridge this shortfall in their submission with equal protection language, while creative, brings an argument that is ultimately no more than word play."
While he denied their stays of execution, Higginbotham did note the five prisoners have spent decades residing on death row—something that gives the judge pause.
"Texas has a strong interest in enforcing the judgments of its courts in criminal cases, but the public interest writ large takes no sides here. The finality of a death sentence and, with it, the inherent risk of uncertainty demand diligent effort by all," Higginbotham wrote.
"These prisoners have enjoyed that effort—with two of them residing on death row in excess of twenty years. The reality may give pause to the entire enterprise, but does not bespeak neglect of bench and bar," Higginbotham wrote. "To these eyes, a system that leaves persons on death row for over two decades more surely taxes the Eighth Amendment's prohibition of undue suffering than does the elusive search for minimum pain for those brief moments of passage across the river."
Texas leads the nation in executions and has put 537 people to death since 1976.
Source: John Council, Texas Lawyer, September 12, 2016
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