On Friday, April 1, 2011 Travis County District Court Judge Stephen Yelenosky denied efforts by Texas death row inmate Cleve Foster to invalidate a new protocol for carrying out executions. Earlier in March, the Texas Department of Criminal Justice (TDCJ) announced that it planned to replace sodium thiopental, the first drug used in the lethal injection process, with pentobarbital. TDCJ’s supply of sodium thiopental expired last month; the sole U.S.-based manufacturer of that drug, Hospira, announced earlier this year that it would no longer produce it.
According to the Associated Press, Foster’s attorneys contended that the change in protocol violated the Texas Administrative Procedures Act, which requires notice and an opportunity for public comment. They sought to block the new procedure and require executions to be carried out under the previous protocol. In a news release, Maurie Levin, counsel for Mr. Foster, asserted that “executions, and the manner in which we carry them out, are of unique public interest and importance, and precisely the sort of decisions and procedures that should be aired in the light of day.”
Judge Yelenosky ruled, however, that state law allows prison officials to make certain decisions – including those related to the execution process – without public scrutiny or input.
The State of Texas is scheduled to execute Cleve Foster on Tuesday, April 5 at 6:00 PM. His attorneys plan to appeal to the 3rd Court of Appeals in Austin.
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