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Fifth Circuit Denies Stay in Challenge to Texas Execution Drug

On September 12, 2016, the Fifth Circuit Court of Appeals denied a stay of execution to five Texas death row prisoners challenging the state's failure to retest the execution drugs it use before each use.

Jeffery Wood, Rolando Ruiz, Robert Jennings, Terry Edwards and Ramiro Gonzales challenged the state's intention of using a single, lethal dose of pentobarbital purchased from a compounding pharmacy to execute them. They raised due process, cruel and unusual punishment, and equal protection concerns. The court dismissed the equal protection claim for failure to state a claim and the others as time barred. Two of the prisoners appealed and moved for a stay of execution based solely upon the equal protection claim.

The Fifth Circuit analyzed the claim as a cruel-and-unusual-punishment claim cleverly disguised as an equal protection claim. Basically, it held that the claim that re-testing was necessary to prevent a painful execution was speculative and flew in the face of the same drug protocol having been used successfully in 32 executions since 2013. The prisoners were required to show the failure to retest the drug "presented a risk that is sure or very likely to cause serious illness and needless suffering and give rise to sufficiently imminent dangers," but had not done so. In fact, this was impossible because, "when pentobarbital is the sole drug used to execute, unconsciousness necessarily precedes death, effectively obviating the problem of conscious pain and suffering."

The court found that the prisoners could not assert a class-of-one claim and any error committed by the district court was harmless. Therefore, it denied the stay. See: Wood v. Collier, No. 16-20556 (5th Cir. 2016)

Related legal case

Wood v. Collier


 

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