The Texas Department of Criminal Justice (TDCJ) announced on March 16 that it will switch to pen­to­bar­bi­tal as part of its three-drug lethal injec­tion pro­to­col for the upcom­ing exe­cu­tion of Cleve Foster on April 5. The short notice has drawn con­cerns from Foster’s defense attor­neys and lethal injec­tion experts. Maurie Levin, a pro­fes­sor at the University of Texas who rep­re­sents Foster, said, ​“Prison offi­cials are not med­ical pro­fes­sion­als. They can­not be trust­ed to change a med­ical pro­ce­dure in the dark of night with­out pub­lic scruti­ny, espe­cial­ly when there is such a min­i­mal track record on the use of pen­to­bar­bi­tal in lethal injec­tions.” Prof. Deborah Denno of Fordham Law School, one of the nation’s lead­ing experts on the lethal injec­tion, said that the ​“Texas deci­sion was not about mak­ing exe­cu­tions more humane but was meant to make the process more fea­si­ble.” She also point­ed to the fact that the prob­lems with the ear­li­er meth­ods of lethal injec­tion arose because one state blind­ly fol­lowed anoth­er, with­out care­ful review: ​“This lem­ming-effect has cre­at­ed a decades-long pat­tern of lethal injec­tion botch­es in which depart­ment of cor­rec­tions try to remain one step ahead of lawsuits.”

As in Oklahoma, pen­to­bar­bi­tal will take the place of sodi­um thiopen­tal, which is no longer being man­u­fac­tured in the United States. If the pen­to­bar­bi­tal does not work cor­rect­ly, the sec­ond and third drugs are extreme­ly painful. Michelle Lyons, spokesper­son for TDCJ, said that the drug ​“has been upheld by the [Oklahoma] courts, so we’re con­fi­dent that it will also be upheld for use in Texas.”

(B. Grissom, ​“Texas Decides on Substitute Execution Drug,” The Texas Tribune, March 16, 2011; Press Release from Maurie Levin, March 16, 2011). See Lethal Injection.

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