Showing posts with label 2013 8:05 AM. Show all posts
Showing posts with label 2013 8:05 AM. Show all posts

Wednesday, October 9, 2013

Fifth Circuit Rejects Ultra-Speculative Attack on Compounding Pharmacy Drugs for Execution October 9, 2013 8:05 AM


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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.