New report reveals that lizards receive more protection under Texas euthanasia law than human beings

April 5, 2011

Cleve will be the first prisoner in Texas to be executed with pentobarbital, a drug manufactured by Danish pharmaceutical company, Lundbeck.

A new report by Northwestern University School of Law, ‘Regulating Death in the Lone Star State: Texas Law Protects Lizards from Needless Suffering, But Not Human Beings’, was presented at Reprieve’s press conference in Copenhagen (which featured a LIVE LIZARD as guest star), before being delivered with an urgent letter to the Danish government and to Lundbeck headquarters.

The report reveals deeply troubling facts about the way pentobarbital has been incorporated into Texas’s lethal injection protocol – most notably, the dangerous lack of clinical regulation of the procedure by the state. It reveals that:

Texas has failed to enact any legislation to ensure that the new use of Lundbeck pentobarbital is effective and humane.

    The lethal injection protocol is left to the sole discretion of the director of the Correctional Institutions Division of the TDCJ – Rick Thaler, a prison official with no medical training. Acting on his discretion alone, Thaler hastily pushed through the amendment to the execution protocol, failing to obtain any meaningful clinical assessment of the possible effects of this new combination of drugs on the prisoner. In fact, prominent anaesthesiologists agree that the combination of pentobarbital with pancuronium bromide and potassium chloride puts the prisoner at extreme risk of ‘serious undue pain and suffering’.

Texas has failed to enact any legislation to ensure that the individuals responsible for extinguishing human life with Lundbeck pentobarbital are properly trained and qualified

    . The Texas Code of Criminal Procedure states only ‘the director of the Texas Department of Criminal Justice shall designate an executioner’. This means that prisoners will be put to death with Lundbeck pentobarbital not under the supervision of doctors and anesthesiologists—or even licensed veterinarians— but at the hands of prison workers.

The method by which Texas executes human beings with Lundbeck pentobarbital will therefore be riskier, less transparent, and have less oversight than the euthanasia of cats, dogs, birds, and lizards

    . Texas has enacted detailed regulations to ensure that animals suffer no pain when they are euthanized with pentobarbital. Animal euthanasia laws regulate acceptable methods of intravenous euthanasia down to the correct dosage per kilogram of an animal’s body weight, and provide strict certification requirements for euthanasia technicians. They also expressly forbid the ‘combination of pentobarbital with a neuromuscular blocking agent’, the very combination that the TCDJ has deemed suitable for the execution of human beings. Cleve Foster’s execution today, in stark and shocking contrast to the euthanasia of animals, will be conducted in a regulatory vacuum without any of the safeguards afforded even to fish, amphibians and reptiles.

Danish pharmaceutical company Lundbeck recently voted to continue supplying pentobarbital for lethal injections in the USA. The company’s management refused to put in place straightforward ‘end-user agreements’ to prevent its drug being used to kill human beings, and subsequently refused to conduct a basic investigation into the safety of its product for executions. Four states, including Texas, have now switched to Lundbeck’s pentobarbital; Texas is the busiest executing state in the US, with seven executions already scheduled. Cleve’s is therefore the first of potentially hundreds of deaths involving Lundbeck drugs.

Today’s press conference in Copenhagen featured prominent Danish human rights advocates Sune Skadegaard Thorsen and Klavs Birkholm, as well as Council of Europe Goodwill Ambassador Bianca Jagger and statements from Cleve Foster’s friends and lawyers. Reprieve also presented a video about the disparity between lizard rights and human rights in Texas.

Reprieve Investigator Maya Foa said:

“Cleve Foster’s execution will be historic for all the wrong reasons. It is experimental, dangerous and has been facilitated by a major Danish company, Lundbeck, which bears responsibility for it. Today’s troubling report contains disturbing revelations about the inhuman way that Lundbeck’s drugs are being used, which the company cannot ignore. Cleve’s execution will not go unnoticed in Denmark, and Tuesday will be a very uncomfortable day at Lundbeck headquarters.”

Watch a video of British woman Trish Archard talking about her penpal on death row, Cleve Foster, or for some light relief watch our lizard video.

For more information please contact Reprieve’s Press Office info@reprieve.org.uk

Notes for Editors:

Pentobarbital is a sedative licensed in the US by the Food and Drug Administration (FDA) for certain therapeutic uses, including preoperative sedation and the treatment of seizures.

Since supplies of the anaesthetic, sodium thiopental, began to dry up in the summer of 2010, departments of corrections have been increasingly turning to pentobarbital as the drug of choice for their lethal injection procedures. Ohio, Oklahoma, Arizona and Texas have already switched to pentobarbital; other states have openly declared their intention to do the same.

Lundbeck is the sole FDA-approved supplier of pentobarbital in the United States. This means that every gram of the drug that ends up in the veins of condemned prisoners has been manufactured and sold by a pharmaceutical company based in Denmark – a country that abolished the death penalty in 1930. The number of executions for which Lundbeck will be responsible is set to grow exponentially as more and more states adopt pentobarbital in their lethal injection protocols. In Texas alone, there are likely to be dozens of executions this year.

Some states, such as Ohio, have changed their execution protocol to a single large dose of pentobarbital. Others, such as Texas, have opted for a new version of the three-drug lethal injection cocktail: pentobarbital, followed by pancuronium bromide and potassium chloride. Four prisoners have already been executed using Lundbeck’s pentobarbital (in Ohio and Oklahoma). The first person to be executed using the new protocol adopted by Texas Department of Corrections is Cleve Foster, slated to die on Tuesday, 5th April.

The use of pentobarbital in executions is experimental, and considered highly risky because the drug was not designed to be used as an anaesthetic. The method of execution chosen by various state correctional facilities, and notably by the Texas Department of Corrections less than three weeks ago, is considered to be particularly dangerous. If the anaesthetic in a three-drug procedure fails, the prisoner dies an excruciating death: the pancuronium bromide paralyzes him, causing him to slowly suffocate, and the lethal dose of potassium chloride has an effect that has been likened to having one’s veins set on fire. See Baze v. Rees, 553 U. S. 35, 53 (2008): if the anesthetic does not work properly, there is an “unacceptable risk of suffocation from the administration of pancuronium bromide and pain from the injection of potassium chloride”.

Texas Department of Corrections hastily adopted a new protocol without consulting medical experts or scientists on the risks associated with this new method. The first experiment using this combination of drugs in Texas will be carried out on a human being, Cleve Foster, on Tuesday. This is extremely dangerous, as Dr. David B Waisel, Associate Professor of Anaesthesia at Harvard Medical School explains:

‘[t]he use of pentobarbital as an agent to induce anesthesia has no clinical history and is non-standard. … The combination of significant unknowns from a lack of clinical history related to using pentobarbital to induce anesthesia …puts the inmate at risk for serious undue pain and suffering’ [emphasis supplied]. [1]

Lundbeck representatives have repeatedly insisted that the company is doing “all it can” to prevent the use of its drugs in executions. However, Lundbeck’s management has now rejected three opportunities to take meaningful action on the issue. After vacillating for weeks, executives ultimately refused to insert straightforward ‘end-user’ agreements – preventing the sale of their products to state penitentiaries for execution purposes – into their supply contracts.[2] They claimed that such agreements could alienate their distributors, but didn’t even go so far as to discuss the matter with the distributors.

Now, Lundbeck’s Chief Executive Ulf Wiinberg has refused to provide a report on the safety of the use of pentobarbital in lethal injection procedures, something which he could easily have asked the numerous scientists who work at Lundbeck to look into. He has refused to even make a statement about the lack of scientific data or clinical testing of the new protocol. A report from Lundbeck on why the method is unsafe, or even a simple statement declaring that there is too little information available to carry out such an experiment on a human being, could be decisive in preventing the torture and death of Cleve Foster on Tuesday 5th April, and countless others – but the company is apparently unwilling to take even these small steps towards minimising the harm that will be done in their name in a matter of days.

Reprieve, a legal action charity, uses the law to enforce the human rights of prisoners, from death row to Guantánamo Bay. Reprieve investigates, litigates and educates, working on the frontline, to provide legal support to prisoners unable to pay for it themselves. Reprieve promotes the rule of law around the world, securing each person’s right to a fair trial and saving lives. Clive Stafford Smith is the founder of Reprieve and has spent 27 years working on behalf of people facing the death penalty in the USA.

Reprieve has represented, and continues to represent, a large number of prisoners who have been rendered and abused around the world, and is conducting ongoing investigations into the rendition and the secret detention of ‘ghost prisoners’ in the so-called ‘war on terror.’

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