HOUSTON (AP) — A federal court rejected a lawsuit by five Texas death row inmates who said the lethal drugs intended for their executions should be retested before their punishments are carried out to ensure they suffer no unusual pain.
Lawyers for the five prisoners argued to the 5th U.S. Circuit Court of Appeals that an agreement between the Texas Department of Criminal Justice and two other inmates to test the pentobarbital for their lethal injections should be extended to them. Failure to do so would violate their constitutional right to equal protection under the law, they said.
The appeals court on Monday agreed with a Houston federal judge's dismissal of the lawsuit filed a month ago, calling it a "novel and flawed invocation of equal protection doctrine."
Texas has put 537 prisoners to death since 1982, more than any other state. It replaced its previous three-drug combination for executions in 2012 with a single dose of pentobarbital and the last 32 lethal injections have used pentobarbital from a compounding pharmacy. Attorneys for the five inmates argued the compounded drug created significant risk of unnecessary pain prohibited by the Eighth Amendment and needed to be retested as the punishments neared.
"The reality is that pentobarbital, when used as the sole drug in a single-drug protocol, has realized no such risk," the appeals court panel said in its 12-page ruling.
The five inmates — Jeffery Wood, Rolando Ruiz, Robert Jennings, Terry Edwards and Ramiro Gonzales — all had execution dates scheduled when their lawsuit against top Texas prison agency administrators was filed Aug. 12 in federal district court in Houston. Since then, Wood, Ruiz and Jennings have received reprieves unrelated to the drug lawsuit. Edwards remains set to die Oct. 19 and Gonzales on Nov. 2.
An order scheduling a July execution for inmate Perry Williams was withdrawn by his trial court judge because the retest of drugs intended for him could not be completed in time for Williams' attorneys to review. The Texas Attorney General's Office agreed to the tests to settle a lawsuit filed on behalf of Williams and another inmate that challenged the use of the drugs.
The five prisoners cited that agreement in their lawsuit, contending it created a right to retesting for all prisoners.
Michael Biles, the lead attorney for the inmates, said he was disappointed with the decision, was considering an appeal to the Supreme court and believed the 5th Circuit had applied the wrong standard to his equal protection claim.
"The state of Texas violated our clients' rights under the Equal Protection Clause of the U.S. Constitution because the testing that it promised to provide shortly before some, but not all, executions implicates a fundamental right ... to be free from cruel and unusual punishment," he said. "When the state of Texas promised to provide additional safety measures for some executions, it must provide those same safety measures for all executions."
Texas Department of Criminal Justice spokesman Jason Clark noted that the agency had carried out the 32 executions using compounded pentobarbital without incident.
"We agree with the 5th Circuit Court's decision," he said. "We believe the opinion speaks for itself."
Two of the five inmates have been on death row for more than two decades, a situation that "more surely taxes the Eighth Amendment's prohibition of undue suffering than does the elusive search for minimum pain for those brief moments of passage across the river," Judge Patrick Higginbotham, writing for the three-judge appellate court panel, said.