Tommy Lynn Sells, a self-confessed serial killer on Texas’s death row, wants the state to tell him about the drugs it plans to use to put him on death on Thursday [April 3]. Two lower courts moved to grant his request, but the Texas Supreme Court decided late last week [March 28] that Sells’ interest in a humane execution may be outweighed by the state’s interest in protecting the confidentiality and safety of the companies that supply lethal injection drugs.
Sells and a second Texas death row inmate, Ramiro Hernandez, are among condemned prisoners in several states waging uphill legal fights against state authorities over the drugs planned for use in lethal injection executions. Death penalty states are in a bind because one of the drugs formerly used in lethal injections, sodium pentothal, is no longer available.
States have scrambled for a substitute and, according to death penalty critics and lawyers for death row inmates, resorted to drugs of unproven efficacy and put up walls of secrecy to try to hide the problems. “The states are more secret than they’ve ever been,” Deborah Denno, a law professor at Fordham University in New York and a leading authority on methods of execution, remarked to The New York Times’s Adam Liptak.
Many death penalty supporters may see the inmates’ pleas for a “safe” method of execution as yet another tactic to delay or even avoid their death sentences and an illogical argument at that. But lethal injection became the nearly universal method of execution in the United States over the past three decades because it came to be seen as the most humane of putting the condemned inmate to death.
Admittedly, murderers such as Sells show no such solicitude for their victims, but that failing is what distinguishes them from the rest of us. It is not too much to ask that courts make sure that lethal injections, as carried out, are the humane executions they are supposed to be.
Lethal injections typically proceed with administration of three drugs in sequence: sodium pentothal (also known as sodium thiopental) to render the inmate unconscious; pancuronium bromide, a neuromuscular paralyzing agent, to stop the inmate from breathing; and potassium chloride to induce cardiac arrest and thus death. But sodium pentothal is no longer available because the former U.S. supplier no longer makes it and European companies refuse to provide it for executions.
As Liptak related in his “Sidebar” column [March 11], reports of executions carried out in two states in January indicate that the substitute drugs used left the inmates conscious and in agonizing pain as the procedure continued. An Oklahoma inmate was heard to say, “I feel my whole body burning.” An Ohio inmate was described by a reporter witness to have struggled, gasped for air, and choked for 10 minutes before succumbing.
Oklahoma is among the states refusing to tell inmates about the drugs now being used. A trial court judge ruled last week [March 26] that the law prohibiting release of that information violates inmates’ due process rights. A judge in Tennessee, ruling in January in a similar suit, ordered the state to turn over the information requested; the ruling is on appeal. In Texas, Sells had won rulings from a lower court judge and an intermediate appellate court before the state supreme court intervened on Friday to block the release pending further consideration.
The issue reached the U.S. Supreme Court earlier this year in a plea by a Missouri death row inmate, Michael Taylor, seeking the identities of the physician, pharmacy, and laboratory who prescribed, compounded, and tested the drugs to be used for his execution. The Eighth U.S. Circuit Court of Appeals on Jan. 24 flatly rejected the plea in an en banc decision, In re Lombardi. Writing in The Atlantic, legal affairs commentator Andrew Cohen aptly called the ruling “terrible” from either a First Amendment or Eighth Amendment perspective. A month later, the Supreme Court refused on Feb. 25 to grant a stay of execution, but three justices Ginsburg, Sotomayor, and Kagan dissented, citing the dissenting Eighth Circuit judges. Taylor was executed later that day.
Among the issues confronting inmates in these cases is an earlier Supreme Court decision, Baze v. Rees (2008), that rejected a challenge to lethal injection protocols brought by Kentucky inmates. States are citing Chief Justice Roberts’s plurality opinion in the case as requiring inmates that challenge an execution procedure to propose a valid procedure themselves. Lawyers for inmates argue that is an absurd requirement that would put them in an ethical conflict with their clients.
Two more cases raising these issues are already at the Supreme Court, as Liptak noted. In Sepulvado v. Jindal, 13-892, Louisiana death row inmate Christopher Sepulvado is claiming a due process right to “timely notice of the method by which he will be executed.” Sepulvado’s plea was to be conferenced by the justices on Friday; a decision whether to hear the case could come on Monday [March 31]. A second Missouri case, Zink v. Lombardi, 13-8435, is scheduled for conference this week.
For the most part, the Roberts Court majority has shown little sympathy for death penalty challenges. They may turn these pleas aside too, but at a cost to the public’s seeming decision that executions be carried out according to modern views of common humanity.