(Houston) Before their execution in early February, two Texas inmates complained that the lethal injections they were to receive contained a supposedly expired substance likely to cause them pain, despite the United States Constitution prohibiting cruelty in enforcement of penalties.
The lawyers for death row prisoners John Balentine and Wesley Ruiz had thus filed a request in December 2022, demanding that the authorities of this southern state ban the use of pentobarbital, a barbiturate.
They accused Texas of using “long expired” products that “could act unexpectedly, clog intravenous lines during execution, and cause unnecessary suffering,” according to court filing information.
“The substances for lethal injections comply with their date of use and have been duly tested”, nevertheless assured AFP the Texas criminal authorities.
Texas has executed 581 people since 1982 — when lethal injections began in the United States — nearly five times more than any other US state, and more than a third of the national total, according to the Death Penalty Information Center (DPIC).
American states that apply the death penalty have the greatest difficulty in obtaining the necessary lethal substances, due to the opposition of pharmaceutical companies who do not want to be associated with the death penalty.
“Cruel Punishment”
Wesley Ruiz, 43, had been sentenced to death for the murder of a police officer in 2007 and John Balentine, 54, for a triple murder in 1998. The two men had claimed that racial prejudice had tainted their respective trials.
They also claimed in their December lawsuit that the use of expired drugs during their execution would “violate their right not to suffer cruel punishment”.
Following this request, Judge Catherine Mauzy ordered on January 10 during an emergency hearing the suspension of all executions in Texas, on the basis that it was “more likely than not” that the stock of pentobarbital could “be expired”, the Texas authorities having not provided evidence to the contrary, according to the local press.
The Attorney General of Texas immediately seized an appeals court which overturned Judge Mauzy’s decision.
Wesley Ruiz was executed by lethal injection on 1er February and John Balentine, February 8.
Pentobarbital has been used more than 90 times since 2013, without any of the effects described by the plaintiffs occurring, Texan authorities lawyer Leah O’Leary pointed out during the January hearing.
Its use in 2022 proves “its power and effectiveness”, she added.
The executions of five detainees are still scheduled in Texas for 2023, some intending to pursue the legal action initiated by MM. Ruiz and Ballentina. A hearing is scheduled to take place on March 20.
At least 3% of executions in the United States between 1890 and 2010 malfunctioned, mostly with the lethal injection method, with some convicts writhing in pain or the executioners struggling to find a vein for the infusion, according to the DPIC .
More than 1300 days
Faced with the blocking of pharmaceutical laboratories, Texas has been buying for nearly ten years a preparation of pentobarbital that a few state pharmacies manufacture, anonymously for fear of reprisals, with a powder ingredient, according to lawyers for MM. Ruiz and Ballentina.
If frozen, a sterile medicated preparation like this has a shelf life of 45 days, according to pharmacy expert Michaela Almgren, cited in the two convicts’ motion.
According to the data consulted by M.me Almgren, the last purchase of pentobarbital by Texas authorities was in March 2021, so any of those doses have been expired for over 600 days. Another batch from 2019 has been expired for more than 1300 days. Yet these preparations have been given new expiration dates in September and November 2023, the court document alleges.
Changes made due to the fact that the product retained its effectiveness but without testing on its state of degradation, explains Michaela Almgren.
“It is concerning that Texas continues to carry out executions with expired pentobarbital, in violation of its own law,” Shawn Nolan, lawyer for MM. Ruiz and Ballentina.
“The risks of dysfunctions during executions will increase if Texas continues to maintain opacity around its execution processes,” he concluded.