|Maurie Levin, one of the attorneys representing Mr. Campbell, commented, "The botched execution in Oklahoma has made clear that the significant risk of a tortuous death is a very real threat when states aren't required to facilitate executions with transparency, accountability and disclosure of the sort sought - and denied - in Oklahoma."
"The fact that Oklahoma attempted to execute Mr. Lockett using a different protocol that did not include the chemical (compounded pentobarbital) called for by Texas' current protocol does not obviate a risk that derives primarily from the secrecy of the entire process - not the individual drug that might be used in one execution vs. the next," states the lawsuit. (p. 5)
Texas' lethal injection protocol calls for a single dose of pentobarbital. Pentobarbital is no longer legally available in FDA-regulated form, but only from compounded pharmacies, which operate outside of FDA oversight, making it impossible to know if the drugs have been properly prepared and tested in order to ensure the execution will be carried out in a manner that comports with the Constitution. In addition, documents show that TDCJ is in possession in midazalom, the first drug used in the botched execution of Mr. Locket.
Executions in Oklahoma and South Dakota that used compounded pentobarbital appeared to have had serious problems. On January 9, 2014, Oklahoma executed Michael Wilson, presumably also using compounded pentobarbital as the first drug in the three-drug formula. Prior to losing consciousness, Mr. Wilson cried out, "I feel my whole body burning." Those were his last words. The State has refused to provide any information about what might have gone wrong in Mr. Wilson's execution, but expert pharmacologist Larry D. Sasich, PharmD, MPH, FASHP, signed a sworn affidavit stating, "It is my opinion that Mr. Wilson's reaction is consistent with contaminated pentobarbital sodium injection."
Dr. Sasich's affidavit is available here. The sworn statement of another anesthesiologist, Dr. Waisel, is here.
In October 2012, in South Dakota, Eric Robert was executed using compounded pentobarbital. Witnesses reported that he "appeared to clear his throat and gasp heavily, at which point his skin turned a blue-purplish hue. Mr. Robert opened his eyes and they remained open until his death, and his heart continued beating for 10 minutes after he ceased to breathe."
On April 14, 2014, in Texas, Jose Villegas was executed with compounded pentobarbital. "As a journalist witness wrote: "Just as the dose of pentobarbital began taking effect, he said, 'It does kind of burn. Goodbye.' He gasped several times, then began breathing quietly. (pp. 11-12)." Additionally, there have been multiple documented problematic executions in Texas via lethal injection, detailed on pp. 13-14.
The Texas Department of Criminal Justice has engaged in secretive and deceptive practices in its attempts to purchase drugs for executions previously, including using a false hospital name and a false patient name (see p. 8), and currently refuses to disclose the source of its lethal injection drug or any other information about the drug's purity, efficacy, or testing.
As the filing states, "In this pivotal regard - the secrecy surrounding the drugs and the executions - Texas is no different than Oklahoma." (p. 6).
"In light of these events, the risky nature of compounded drugs, problematic executions involving compounded pentobarbital, and the risks inherent to a secretive process, law and equity demand that we pause in our pursuit of executions. To move forward without hesitation despite full awareness of the grave risks and possibly torturous results - to permit this execution to proceed in light of the eye-opening events in Oklahoma - should not be countenanced by a civilized society , nor tolerated by the constitutional principles that form the foundation of our democracy." (p. 6)
Additionally, Mr. Campbell's case contains other areas of concern, highlighted in his state habeas filing, including intellectual disability, quality of legal representation, disparity in sentencing, and possible racial bias at trial. Testing indicates that Mr. Campbell is a person with intellectual disability. At the age of 18, he and another man, Mr. Lewis, committed a tragic rape and murder. Although the DNA evidence implicates the men equally, Mr. Lewis is now free while Mr. Campbell is on death row. Mr. Campbell's right to post-conviction review was essentially forfeited by an appointed lawyer who filed a boilerplate brief that was identical to the ones he filed for four other condemned men. Finally, Mr. Campbell is an African American man who was prosecuted in Harris County, Texas, during an era which has been widely criticized for overt racial bias in other cases in that area. The state habeas filing can be accessed here.