The Death Row Inmates Who Sued Over the Execution Drug Have Appealed the Ruling

Last week, U.S. District Judge Lynn Hughes of Houston dismissed a lawsuit filed against the state by three death row inmates who claimed that Texas planned to execute them using untested compound drugs that may cause them great pain, in violation of the eighth amendment. Now, two of those men are appealing the judge’s decision to the Fifth Circuit Court of Appeals. (The third prisoner who brought the lawsuit, Michael Yowell, was killed by the state in October after the Fifth Circuit denied his request for injuctive relief.)

Based on the Fifth Circuit’s refusal to grant the injunction for Yowell in October, the odds aren’t in favor of Thomas Whitaker and Perry Williams, the two surviving plaintiffs, getting the ruling they’re hoping for.

At issue here is the state’s use of compounded drugs for executions, or drugs created in small batches by local pharmacies, rather than versions purchased from the drugs’s manufacturers. The prisoners sued on the grounds that those compounded drugs are untested and their potency and purity is unknown, which “runs a substantial risk of grave pain.” According to the Houston Chronicle, though, Hughes rejected that argument:

U.S. District Judge Lynn N. Hughes dismissed the suit Dec. 4, saying that, because the prisoners “do not know the means that Texas will select for their execution, their claim of an injury from that unknown means is hypothetical. Courts do not address issues that are not yet ripe.”

It’s pretty clear what means Texas will select for their execution, of course: state law requires that they be killed by lethal injection, and the only lethal injection drugs that Texas has at the moment come from the compounding pharmacy. But the injury—that is, either a painful death or a failure on the part of the drug to actually kill the prisoners—can’t be proven.

The Ripeness Doctrine, in other words, says that the case isn’t ready for litigation because the drugs used may not cause the problems that the lawsuit seeks to prevent. In order for the prisoners to have a strong case, they would have to be injected with the drugs, die painfully, and then sue.