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Execution Stay Denied Despite Texas Lethal Drug Shortage

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By Brett Snider, Esq. on October 10, 2013 4:21 PM

The Fifth Circuit denied a stay of execution for a Texas man sentenced to be executed on Wednesday, ignoring arguments about uncertainty with regard to the lethal injection drugs.

According to The Associated Press, Michael Yowell was set for execution on Wednesday for the murder of his mother and father in 1998, an execution that would be carried out with pentobarbital that was acquired from state compounding pharmacy.

Despite the plaintiffs' arguments that this pentobarbital could cause hypothetical issues, the Fifth Circuit stated that mere speculation is not enough to stop Yowell's execution.

Pentobarbital Shortage and Compounding Pharmacies

All over the country, state prisons are running out of the lethal injection drug, pentobarbital, which according to the FDA, has been restricted by its manufacturer since 2011.

While Ohio has turned to other drug combinations as a substitute for pentobarbital, Fox News reports that Texas has enlisted compounding pharmacies to provide the necessary doses of pentobarbital -- outside of FDA scrutiny.

Acting on this change in protocol, Yowell and two other death row plaintiffs filed for a preliminary injunction to prevent executions using compound-pharmacy-produced pentobarbital, as well as a motion for stay of execution for Yowell and were denied by the lower court.

Unfortunately, the Fifth Circuit didn't think there was a substantial likelihood of the plaintiffs' success on the merits of this injunction.

Need More Than Speculative Harm, Pain

It may sound unnecessarily strict, but the bar for staying an execution under Eighth Amendment grounds requires that the plaintiff prove:

  • The State's lethal injection protocol creates a demonstrated risk of severe pain, and
  • The risk is substantial when compared to known and available alternatives

Plaintiffs fired back that there are risks when compounding pharmacies are used to produce pentobarbital, since there is little FDA oversight on the source of the components used to make the drug. These claims aren't without merit either; the FDA was chastized by the D.C. Circuit in July for turning a blind eye to the unauthorized importation of thiopental that state prisons were using to in lethal injections.

But without any concrete evidence that this compounded drug caused substantially more of a risk of pain, the Fifth Circuit would not be convinced to grant an injunction. Besides, SCOTUS dispatched a similar case in 2010 arguing that "speculation cannot substitute for evidence" when considering drugs from a foreign source.

Bottom Line:

When it comes to staying executions because of a new drug source, risks from unknown unknowns may are just not enough.

Editor's Note: According to FoxNews, Michael Yowell was excuted as planned the evening of October 9.

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