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Death-Row Challenge Is|Premature, Judge Rules

HOUSTON (CN) - Two death-row inmates cannot challenge the use of compounded drugs for lethal injection, a federal judge ruled, because they "do not know the means that Texas will select for their execution."

Thomas Whitaker and Perry Williams sued two Texas Department of Criminal Justice directors, a senior warden at the TDCJ's Huntsville prison and unknown executioners in Federal Court.

Their co-plaintiff, Michael Yowell, was executed on Oct. 9.

Texas adopted lethal injection as a method of executing death-row inmates in 1977, according to the state department's website. The current protocol uses the drug pentobarbital.

Whitaker, Williams and Yowell expressed concern with the state's acquisition of the drug from a compounding pharmacy when it ran out of the name-brand version. They argued that the compounded drug might cause them to suffer a cruel amount of pain, resulting in a violation of their rights under the U.S. Constitution.

Whitaker was sentenced to death in March 2007 after his conviction for arranging the murder of his mother and brother so he could collect a $1 million inheritance. His father survived the shooting.

Williams received a death sentence in June 2002 for shooting a man in the head during a robbery in Houston.

A jury sentenced Yowell to death in 1999. Unlike Whitaker and Williams, he was the only plaintiff with a scheduled execution date.

Yowell shot his father and strangled his mother before setting their house on fire in Lubbock, Texas, on May 19, 1998. His disabled grandmother later died from injuries sustained in the same fire.

U.S. District Judge Lynn Hughes denied Yowell a preliminary injunction shortly before the state carried out his sentence on Oct. 9.

A three-judge panel of the 5th Circuit in New Orleans unanimously affirmed the ruling.

"If the state were using a drug never before used or unheard of, whose efficacy or science was completely unknown, the case might be different," the panel wrote. "The state, however, will use a standard amount of pentobarbital for Yowell's execution. Plaintiffs argue that because the state has transitioned to using compounding pharmacies, there are known unknowns because of the possibility of contamination. That may be true, but plaintiffs must point to some hypothetical situation, based on science and fact, showing a likelihood of severe pain." (Emphasis in original.)

"None of the examples in their brief shows any such possibility based on the known unknowns stemming from obtaining drugs from a compounding pharmacy," the panel noted.

Last week, Hughes issued a one-page final dismissal of the remaining inmates' claims.

"Because Thomas Whitaker and Perry Williams do not know the means that Texas will select for their execution, their claim of an injury from that unknown means is hypothetical," Hughes wrote. "Courts do not address issues that are not yet ripe."

As of Dec. 9, neither Whitaker nor Williams has been added to the TDCJ's list of scheduled executions.

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