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Fifth Circuit Rejects Ultra-Speculative Attack on Compounding Pharmacy Drugs for Execution

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The Fifth Circuit yesterday decided Whitaker v. Livingston, No. 13-70031.  A co-plaintiff in the case is Michael Yowell, a Texas triple murderer scheduled for execution at 6:00 p.m. CDT today. Walter Nett has this story in the Lubbock Avalanche-Journal.

The notion that getting execution drugs from a compounding pharmacy presents an unconstitutional risk of severe pain is speculative to start with.  It is negated to a near certainty if the state has the drug tested to ensure purity and potency, which Texas has done.  An excerpt from the opinion follows the jump.

A plaintiff can therefore succeed on an Eighth Amendment claim in this context [under Baze v. Rees] only if he can establish both that the state's protocol "creates a demonstrated risk of severe pain" and that that risk "is substantial when compared to the known and available alternatives."

Plaintiffs contend that they can "clearly meet" success on either prong, but their more serious contention is that if they cannot demonstrate that the Baze standard is met, it is because they need more time to do so. It is indeed not unreasonable to assume that if a prisoner has the right to be free from a demonstrated risk of severe pain when compared to a known and available alternative, he ought to have the opportunity to prove the risk of pain and the availability of alternatives. Even so, plaintiffs must point to some likelihood that such pain will be severe and that some alternative may exist. It is unacceptable to claim that some unspecified amount of time is required, just in case they might happen to be able to show that there might be some risk of potentially excessive pain.

If the state were using a drug never before used or unheard of, whose efficacy or science was completely unknown, the case might be different. The state, however, will use a standard amount of pentobarbital for Yowell's execution. Plaintiffs argue that because the state has transitioned to using compounding pharmacies, there are known unknowns because of the possibility of contamination. That may be true, but plaintiffs must point to some hypothetical situation, based on science and fact, showing a likelihood of severe pain.

Known unknowns?  Should we dub this the Rumsfeld Argument?

None of the examples in their brief shows any such possibility based on the known unknowns stemming from obtaining drugs from a compounding pharmacy. Plaintiffs claim that compounding pharmacies are not subject to stringent FDA regulations, that the active ingredients are obtained from a global "grey market," and that there is a chance of contamination. Plaintiffs claim, along with their expert, that this increases the risk of a more painful injection, a burning sensation if the acidity is incorrect, or conditions such a pulmonary embolism. They assert it increases the risk of a potency problem that may make the drug ineffective in killing (although the laboratory results for the drug showed a 98.8% potency).

All of these things may be true. But what plaintiffs are demanding is that, in effect, they be permitted to supervise every step of the execution process. They have no such entitlement. They must offer some proof that the state's own process--that its choice of pharmacy, that its lab results, that the training of its executioners, and so forth, are suspect. Plaintiffs have pointed to only hypothetical possibilities that the process was defective.

The lab test shows the drug is potent.  Given that, it will anesthetize the murderer, and he will have less pain in his death than most of us are going to have when we die of disease, accident, or murder.  To litigate any further is absurd.

Yowell, BTW, murdered his parents and then turned on the gas to blow up the house, killing his grandmother.  Perhaps he should claim that his sentence is disproportionate due to the mitigating circumstance that he is an orphan.  Under the absurd interpretation of the Eighth Amendment in Lockett v. Ohio, he is constitutionally entitled to make the classic chutzpah argument.

1 Comment

Interesting commentary - this case is new to me, and your point about his pain being minimal due to the drug's anesthetizing effects is well said. As a legal writer for an attorney, I find your blog a helpful resource for education and news, especially nationally. I'll continue to read - thanks.

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