- Associated Press - Tuesday, January 28, 2014

BATON ROUGE, La. (AP) - Louisiana’s shift to a two-drug lethal injection method has worsened the risk of cruel and unusual punishment for a DeSoto Parish man scheduled for execution next week, an attorney for the condemned killer said Tuesday.

Gary Clements is asking a federal judge to postpone the Feb. 5 execution date set for Christopher Sepulvado, who was convicted of the 1992 beating and scalding death of his 6-year-old stepson.

Clements has argued the judge should delay the execution because of continuing questions about the drugs that will be used, how the state will obtain them and whether the method violates Sepulvado’s constitutional right against cruel and unusual punishment.

The Department of Corrections announced late Monday that the Louisiana State Penitentiary didn’t have the pentobarbital that its execution protocol said would be used for the injection. The department said it rewrote the protocol to also allow for a two-drug combination used in Ohio that includes the sedative midazolam and the painkiller hydromorphone.

In new court documents filed Tuesday, Clements said that two-drug method could put Sepulvado even more at risk. The attorney cited witness statements describing a man recently executed in Ohio as gasping, struggling and convulsing for up to 15 minutes after the drugs began flowing.

“Defendants know or should that this method of execution creates a substantial risk of pain from death by suffocation. The harm to which Defendants will subject Sepulvado … is substantial and objectively intolerable,” Clements, director of the Capital Post-Conviction Project of Louisiana, wrote in the court filing.

Dennis McGuire was put to death Jan. 16 in Ohio for raping and killing a pregnant newlywed in 1989. The combination of drugs used to execute him had never before been used in the U.S., and his fitful final moments have sparked criticism. McGuire took 26 minutes to die after the chemicals began flowing.

Questions remain about how the Louisiana Department of Corrections will obtain the drugs needed for the alternative injection method.

A spokeswoman for the agency didn’t answer questions Tuesday about whether the department was confident it could locate the drugs for next week’s execution of Sepulvado and wouldn’t describe how the department is trying to get them.

Drugs used in executions have become more difficult to acquire, as companies have been resistant to sell them for such a purpose. For Louisiana’s last execution in 2010, a three-chemical lethal injection process was used.

Sepulvado was convicted of first-degree murder for the killing of Wesley Mercer. Court records say Sepulvado repeatedly hit Mercer on the head with a screwdriver handle and then immersed him in a bathtub filled with scalding water after the boy came home from school with soiled pants.

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