Texas man executed, though secrets about drug concoction remain

The state of Texas executed Tommy Lynn Sells on Thursday evening after the US Supreme Court refused to issue an 11th hour stay to allow lawyers time to investigate the source and quality of the lethal drugs used put their client to death.  

Mr. Sells was on death row for 13 years following his conviction for killing a 13-year-old Texas girl on New Year’s Eve 1999. He was 35 years old at the time. He later claimed to have killed as many as 70 others in Alabama, Arizona, Arkansas, California, and Kentucky.

Although there was no doubt about his guilt in the Texas case, Sells’ lawyers fought to the end to delay his execution. The lawyers have been asking the courts to force Texas corrections officials to disclose details about the lethal drugs it intended to use to carry out executions.

The lawyers also wanted Texas officials to disclose where the state obtained the drugs and whether they were adequately tested to safeguard against a botched execution.

Texas corrections officials, like those in other states with the death penalty, have been under intensifying pressure in recent years from aggressive boycotts and protests against drug companies producing lethal compounds for use in state-sanctioned executions.

The campaign has resulted in a shortage of the drug pentobarbital, which was used for capital punishment in many states. Drug companies and compounding pharmacies are refusing to produce and sell the drug rather than endure protests and other pressures from opponents of capital punishment.

In response to these tactics, corrections officials in Texas and other states have tried to keep details of their execution methods secret – including which drugs will be used and how they were obtained.

Lawyers working on behalf of death row inmates have argued that condemned prisoners have a right to know how they will be put to death. They say lawyers for death row inmates have a duty to ensure their client will not be subjected to cruel or unusual punishment in violation of the Eighth Amendment, including being subjected to excessive pain during the lethal injection process.

“The expanding practice of hiding execution methods and drug sources from scrutiny only increases the risk that executions will violate the Eighth Amendment,” Philadelphia lawyer Maurie Levin and Jonathan Ross of Houston wrote in their petition urging the high court to issue a stay and examine the issue in the Sells case.

A federal judge in Texas ordered the state to disclose information about its lethal injection protocol and its source of the drugs. A federal appeals court overturned the federal judge’s order on Tuesday, opening the way for Sells’ execution.

In a statement, Ms. Levin and Mr. Ross said they were hopeful that the US Supreme Court and Texas courts would ultimately agree that there must be transparency in the execution process.

“If we are going to have the death penalty in Texas, then the state cannot cloak its execution process in secrecy, preventing counsel for the condemned, the courts, and the public from obtaining basic details regarding the state’s execution process,” they said.

The petition to the Supreme Court was submitted to Justice Antonin Scalia, who referred it to the full court. The court did not explain its decision. There was no dissent.

The high court is expected to consider the lethal drug disclosure issue in a different case during its private conference on Friday. That case involves a Louisiana death row inmate, Christopher Sepulvado, whose lawyers argue that he has a due process right to know how the state is planning to put him to death. The lawyers say the state must also disclose the name of the company that provided the execution drugs and demonstrate that the drugs will achieve their lethal objective without causing excessive pain and suffering.

Louisiana officials, like Texas officials, dispute that any such right exists.

It is unclear whether the high court’s refusal to stay the Sells execution means the justices are not interested in examining the issue.

The court could announce as early as Monday whether it will take up the Louisiana case.