Inmate in Texas challenges death penalty based on new drug

Cleve Foster, a convicted murderer on Texas' death row, is challenging the state's switch to a new drug for executions in light of the growing shortage of sodium thiopental, the New York Times reports today. Foster was convicted in 2004 of murdering a Sudanese woman with his roommate, who died in prison last year.

The Supreme Court has issued a stay of execution, also according to the Times, based on questions about counsel in addition to the questions about the legality of his execution.

However, what most interests me is the effect of a ruling against the use of alternative drugs in the execution of criminals:

As recently as January, 34 of the 35 states that allow lethal injections for executions used sodium thiopental, usually administered as the first of three drugs that are intended to prevent pain, inhibit muscle movement and then stop the heart.

Michelle Lyons, a spokeswoman for the Texas Department of Criminal Justice, said Monday that Mr. Foster’s execution was one of seven scheduled in Texas through August.

Ms. Lyons said that the state had plenty of sodium thiopental on hand, but that it reached its expiration date at the end of March.

Ms. Levin said Monday that Texas had failed to adhere to its own administrative rules when it decided to switch to pentobarbital and that it had not properly notified the public of the change.

Mr. Foster’s lawyers also say the state used an invalid federal permit to buy pentobarbital.

“Given the frequency of which we carry out this ultimate act, it should be done in compliance with the law, with transparency and deliberateness and care,” said Ms. Levin, who also teaches at the University of Texas. “It is experimental, a drug that is brand new to lethal injections.”

What do you guys think? Will the Supreme Court rule in Foster's favor? - and better yet, should they?