Federal Court Considers Whether To Stop Texas Execution Set For Next Week

“When our system tolerates secrecy, constitutional abuses — such as the tortured death of Mr. [Clayton] Lockett — occur,” lawyers for Texas death row inmate Robert James Campbell argue about last week’s botched execution in Oklahoma. Lawyers for Texas say their state’s process is different. [Update: The judge ruled against stopping the upcoming execution.]

The death chamber is seen at the federal penitentiary in Huntsville, Texas, Sept. 29, 2010. Handout / Reuters

WASHINGTON — A federal judge is considering Friday whether to stop an execution scheduled for May 13 in Texas because lawyers for the man, Robert James Campbell, say Texas’ “failure to disclose” information about the drug it plans to use could lead to a situation like last week’s botched execution in Oklahoma.

The state, however, responded earlier this week that Campbell’s claims are “foreclosed by Fifth Circuit precedent, and recent problems in another state following an entirely different execution procedure do nothing to change this fact.”

As for Texas’ procedures, the lawyers for the state noted, the state’s single-drug protocol using phenobarbital has been approved by the courts and used as recently as April 16 with the execution of Jose Villegas.

In contrast to Oklahoma, the lawyers noted, Texas “has carried out three executions with the same drug from the same supplier, which is vastly different from the situation in Oklahoma in which an admittedly new protocol was used.”

Regarding Texas’s protocol, they write:

Defendants now intend to use pentobarbital from a licensed compounding pharmacy within the United States, and the pentobarbital to be used was independently tested at 108% potency. Any concerns about the drug’s origin and reliability are alleviated once the drug has been tested and its potency confirmed, both which have been done here.

In a reply filed Thursday, Campbell’s lawyers countered that “what is precisely the same in Oklahoma and Texas is the states’ insistence on shrouding the process in secrecy.”

The state has refused to say where it obtained the latest batch of phenobarbital from, beyond stating that it is from “a licensed compounding pharmacy within the United States.” Campbell’s lawyers go on:

It is transparency that holds government accountable, and permits death sentenced inmates to protect their constitutional rights. When our system tolerates secrecy, constitutional abuses – such as the tortured death of Mr. Lockett – occur.

The Friday morning hearing on the request for a temporary restraining order to halt the execution is due to continue Friday afternoon.

update

After a hearing, U.S. District Court Judge Keith Ellison denied the motion for a temporary restraining order, per the case docket, keeping the execution set as scheduled for May 13.

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