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High-profile death row inmate gets last-minute reprieve

Correction, 5:00 EST: This story originally implied the stay placed on Foster’s execution by the U.S. Supreme Court was based on the use of pentobarbital. In fact, it was based on poor legal defense. An appeal on the use of pentobarbital has been rejected by appeals courts in Texas, though attorneys have expressed desire to take that case to the Texas Supreme Court.

While a growing number of states have imposed de facto or legally binding moratoriums on the death penalty and others have done away with it altogether, Texas, far and away the nation’s leader in executing prisoners, continues to apply it without reservation. Cleve Foster, who was scheduled for execution today, is one such case. The outcome of his most recent appeal may have a major impact on the future of the death penalty in Texas and throughout the country.

Cleve Foster, a Gulf War veteran, was convicted in 2002 of the murder of Nyanuer “Mary” Pal, a Sudanese refugee. There is an abundance of support for Foster, evidently stemming from a belief in his side of the story and respect for him as a former U.S. Army officer — he was a sergeant first class and is known as “Sarge” among the other death row inmates. To others, Foster’s guilt is not in question, and indeed, the more than half-dozen contradictory stories he and his accomplice, Sheldon Ward, produced during the initial trial stretch the bounds of believability (several, for example, involve Pal initiating sex with an unconscious Foster, which would conveniently explain away DNA evidence). Foster was also connected to an earlier and strikingly similar murder that Ward was ultimately convicted for. In 2009, Ward died of a stroke while awaiting execution.

The news, then, that Foster has been granted a 30-day reprieve by the U.S. Supreme Court in spite of reports from as recently as this morning that he’d exhausted all appeals may be a sign of a changing tide in the American criminal justice system. Although Foster continues to base his argument on his insistence that he’s innocent, the Supreme Court had already struck down an appeal on that basis in January. The reason for the reprieve lies in shoddy legal defense in previous proceedings; the Supreme Court order Tuesday did not mention pentobarbital, though his lawyers have not given up on the argument.

An article that appeared this morning in the online edition of The Atlantic (it went to press when Foster was still scheduled to die later tonight) explained the problem with the drug. Modern lethal injection requires a series of three drugs: an anesthetic to make the procedure painless, a paralytic to halt lung function and a third drug to stop the heart. As The American Independent has reported, there is virtually no legal way for states to acquire sodium thiopental, the anesthetic traditionally used, as the last U.S. manufacturer of the drug ceased production in January.

To make up for the sodium thiopental shortage, Texas had planned to instead use the similar drug pentobarbital; Foster was to be the first person in the U.S. executed with it. Anesthesia, however, is a notoriously tricky business, and pentobarbital has never been tested with respect to its application in executions. If not applied correctly, it would fail to mask the excruciating pain of the paralytic, which would also stop Foster from making any outward sign of pain. Pentobarbital is actually banned in veterinary medicine for use in conjunction with pancuronium bromide and potassium chloride, the paralytic and heart-stopper, respectively.

A report (PDF) that the ACLU of Texas, the ACLU Capital Punishment Project and the Center for International Human Rights at Northwestern University School of Law issued in response to the Foster case notes this fact bitterly. The introduction concludes, “It is no exaggeration to say that Texas regulates the euthanasia of reptiles more strictly than the execution of human beings.”

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