Death Row Inmates Sue Over Lethal Injection Drug

Two death row inmates sued the state today, arguing that the decision to use a new lethal injection drug was made too secretly and too hastily.

"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, attorney for Cleve Foster, who is scheduled to be executed April 5. Foster and Humberto Leal, who is set to die July 7, both sued the Texas Department of Criminal Justice.

Foster, who contends he is innocent of the 2002 rape and murder for which he was condemned to death, is set to become the first Texas inmate to be executed with pentobarbital instead of sodium thiopental. Pentobarbital will be the first of three drugs the state administers during an execution. It is an anesthetic, meant to render the inmate unconscious before the remaining two drugs stop the vital organs.

TDCJ decided on March 16 that it would use pentobarbital in executions. Texas and other states were forced to find a substitute for sodium thiopental when the only American producer of it, Illinois-based Hospira Inc., announced in January it would stop selling the drug. Hospira had planned to manufacture the drug in an Italian plant, but authorities in that country wanted a guarantee that the drug would not be used in executions. 

Texas officials decided to follow the lead of Oklahoma and use pentobarbital in the lethal injection protocol. TDCJ spokeswoman Michelle Lyons said this morning that officials are still reviewing the inmates' case.

The lawsuit filed today in Travis County District Court seeks a declaration that Texas' new execution protocol is void because it doesn't comply with the  Administrative Procedure Act. When TDCJ officials failed to notify the public or to allow for a comment period about the change, lawyers for the inmates argue that the agency violated the act. "In its rush to execute Mr. Foster, Texas has violated the law and circumvented the open government process,” Levin said in a statement announcing the lawsuit.