Whether the Eighth Amendment prohibits the use of degraded, unstable lethal injection drugs that pose a substantial risk of causing severe pain during execution

No question identified. : APPLICATION FOR STAY OF EXECUTION PENDING DISPOSITION OF PETITION FOR WRIT OF CERTIORARI To the Honorable Samuel Alito, Associate Justice, and Circuit Justice for the United States Court of Appeals for the Fifth Circuit: INTRODUCTION On November 16, 2023, David Renteria is scheduled to be executed by an injection of compounded pentobarbital that has unnecessarily and been left to degrade so that non-lethal degradants, some known to cause pain, can precipitate into the solution. Mr. Renteria argued that the executioner’s unnecessary adulteration of the lethal injection drug violates his Eighth Amendment right to be free from cruel and unusual punishment and his right not to be deprived of life outside the due process of law. Mr. Renteria supported his claims with uncontested evidence showing the following regarding the mental state and actions of the Director of Texas’s prison system, the state official given discretion over execution procedures: (1) the Director uses compounded pentobarbital that (2) he knows is inherently unstable and (8) quickly degrades into non-lethal substances if it is not kept cold. Petitioner’s uncontested evidence showed the Director is aware that (4) some of those degradants are crystalline 2 and can cause severe pain at injection sites, and (5) others are viscous and can cause quantities of the lethal substance to leak into surrounding tissue. The State did not dispute (6) that it is unnecessary for the Director to stockpile compounded pentobarbital, or (7) that it is unnecessary for the Director to store the drug at room temperature, as he does. Texas also did not dispute (8) that every other State similarly situated to Texas has abandoned the use of stockpiled, unrefrigerated drugs because of the risks they entail. Finally, it was uncontested that (9) Petitioner and others similarly situated fear the pain associated with those non-lethal degradants. The Texas Court of Criminal Appeals (TCCA) rejected these claims on the merits, concluding that Mr. Renteria’s uncontested evidence failed to state a prima facie case under this Court’s decision in Glossip v. Gross, 576 U.S. 863, 877 (2015), because he did not show “that any condemned inmate has been subjected to cruel and unusual punishment from the use of pentobarbital, much less that Applicant himself will be.” Op. 5. The requirement that an inmate present evidence that an Eighth Amendment violation has already occurred or that he “will be” harmed is in direct conflict with this Court’s holding that “‘an inmate challenging a protocol bears the burden to show, based on evidence presented to the court, that there is a substantial risk of severe pain.” Glossip, 576 U.S. at 882 (emphasis added). 1 The TCCA’s order raises significant questions this Court should consider. First, the order does not account for the Director’s failures to follow the law in carrying out Texas executions. “Due process of law is process due according to the law of the land.” Walker v. Sauvinet, 92 U.S. (2 Otto) 90, 93 (1875); see also Hurtado v. People of California, 110 U.S. 516, 540-541 (1884) (equating “by the law of the land” with “due process of law’). This Court’s Eighth Amendment analysis thus holds that the degree of punishment to be inflicted “for specific crimes involves a substantive penological judgment that ... is properly within the province of legislatures.” Harmelin v. Michigan, 501 U.S. 957, 998 (1991). Texas law delegates to the director of the State’s prison system (the Director) the discretion and responsibility to “determine and supervise” 1 The TCCA also plainly violated the rule of Hansberry v. Lee, 311 U.S. 32 (1940), when it upheld the purported adjudication of Mr. Renteria’s claims in an order that merely copied verbatim the text of an order from a different case in which Renteria was not a party, was not served with either the petition or the response, and that raised different claims under different legal theories and with