Lawyers for the first US prisoner scheduled to be put to death since the bungled execution of Clayton Lockett have launched a last-minute appeal that seeks to stay the procedure and lift the shroud of secrecy over Texas’s drug supplies.



Robert Campbell is set to be given a lethal injection in the Texas death chamber on Tuesday evening, but officials have refused to reveal the source of the sedative that will kill him, adopting a stance mirrored in several other states as it becomes increasingly difficult for prisons to find suitable drugs and willing suppliers.



On Monday, Campbell’s legal team filed an appeal with the federal fifth circuit court in which they argue that Lockett’s messy death marks a “dramatic change in the relevant landscape” and that Oklahoma’s lack of transparency was a major factor in the problems.

“The common denominator between Oklahoma and Texas’s lethal injection procedures – secrecy – was the primary and substantial risk facing Mr Lockett. All his attempts to gain information about the drugs with which Oklahoma intended to carry out his execution were for naught – and he was subjected to a torturous execution that undoubtedly violated the Eighth Amendment,” the lawyers claim. “Mr Campbell seeks to protect his right not to suffer the death experienced by Mr Lockett.”

Oklahoma has agreed not to carry out any more executions until an investigation into the events of 29 April is concluded. In the immediate aftermath, prison officials said that a vein “blew” and Lockett suffered an apparent heart attack. The White House said the execution “fell short of humane standards”.



Last Friday a district judge ruled against Campbell, citing previous court decisions in favour of drug secrecy in similar cases which, he said, established a precedent. But he strongly urged the federal appeals court to re-examine the issue and consider ruling for greater openness in light of events in Oklahoma.



Judge Keith P Ellison wrote: “The horrific narrative of Oklahoma’s botched execution of Clayton Lockett on 29 April, 2014 requires sober reflection on the manner in which this nation administers the ultimate punishment … this court urges the fifth circuit to reconsider its jurisprudence that seems to shield crucial elements of the execution process from open inquiry.”



Ellison also referred to a Catch-22-type situation facing inmates in court, since their claims that uncertainty about drug origins and quality means they face unconstitutional “cruel and unusual punishment” cannot be based solely on speculation, yet “in sanctioning the state’s refusal to disclose potentially relevant information, fifth circuit case law appears to leave the inmate with nothing but speculation on which to rely.”

The judge’s words follow the sharp criticism of Missouri’s secretive practices by a federal appeals judge in February. Kermit Bye wrote that given “the absolute dearth of information Missouri has disclosed to this court, the ‘pharmacy’ on which Missouri relies could be nothing more than a high school chemistry class.” His stance was backed by three supreme court justices.

Campbell’s lawyers also argue that his previous legal representation was inadequate and that he is intellectually-disabled, with an IQ of 69, making his execution unconstitutional.



He was convicted of the 1991 murder of Alexandra Rendon, a bank employee, in Houston. The 20-year-old was abducted from a gas station, sexually assaulted, robbed and shot in the back. A witness said that Campbell told her to “run, bitch, run”, before shooting at her.



Campbell would be the 34th person executed by Texas since it switched to a single-drug pentobarbital protocol in July 2012. According to court documents, it has executed seven inmates with compounded pentobarbital including three with its latest, obscured, supply of the drug.



In the aftermath of Lockett’s death, Texas officials insisted that it would be business as usual in the nation’s most active death-penalty state because they use a different protocol to Oklahoma, which has a three-drug procedure. Texas also contends that it now has a long track record of carrying out pentobarbital executions efficiently, and that a laboratory has tested its batch and found it to be suitably potent and free of contaminants. However, during the state’s most recent execution, last month, Jose Villegas reportedly said “it does kind of burn” as the drug took effect.



Campbell’s lawyers counter that a lack of transparency about the procurement and testing processes threatens a death row inmate’s rights regardless of the substance used in the execution, especially given the lightly-regulated nature of many compounding pharmacies.

Since Lockett’s death, Texas has arranged four more executions between August and January 2015, according to the Texas Department of Criminal Justice.

