april 3, 2014
A federal appeals court on Wednesday threw out a ruling requiring the Texas prison system to disclose more information about where it gets lethal-injection drugs, reversing a judge who had halted an upcoming execution.
Only hours before the appellate decision, a lower-court judge issued a temporary injunction halting the execution of Tommy Lynn Sells, a convicted serial killer who was set to die Thursday.
The case originally included Ramiro Hernandez-Llanas, another inmate scheduled to be put to death next week. But the appellate ruling affected only Sells. The appeals court said it would take up Hernandez-Llanas’ case at a later date.
The case now is likely headed to the US supreme court.
District judge Vanessa Gilmore had issued a temporary injunction on Wednesday ordering Texas to provide the lawyers representing Sells and Hernandez-Llanas with information about the supplier and quality of a new batch of pentobarbital, a barbiturate that is to be used in the lethal injections.
Sells was scheduled to die in the Texas state penitentiary on Thursday, and Hernandez-Llanas six days later. Texas’s previous supply of compounded pentobarbital expired on 1 April, and the state has repeatedly refused to reveal the source of its new drugs, claiming that secrecy is needed in order to protect suppliers from threats of violence and intimidation.
Lawyers for the pair argue that Texas’s attorney general had previously ruled on several occasions that such information must be made public, and also said that failing to provide details about the origin, purity and efficiency of the drugs harmed the inmates’ ability to mount a legal challenge over the possibility that they could experience an excessively painful death in violation of their constitutional right not to suffer a “cruel and unusual” punishment.
In her ruling, Gilmore agreed, and instructed Texas not to execute the men until it has disclosed to the lawyers “all information regarding the procurement of the drugs defendants intend to use to carry out plaintiffs’ executions, including information about the supplier or suppliers, any testing that has been conducted, what kind, by whom, and the unredacted results of such testing.”
In recent years an EU-led boycott has made it harder for states to source their execution drugs of choice, resulting in some states turning to experimental drugs and procedures to replace the sequence of three substances that was commonly used before the boycott. In its executions, Texas now employs only pentobarbital, which is often used to euthanize animals. Last year, it bought a supply of the drug from a compounding pharmacy in suburban Houston.
Death penalty opponents argue that, because compounding pharmacies are not subject to federal oversight, there is a risk of impurities and inconsistencies that could make their products unreliable and cause undue, unconstitutional, of suffering.
Texas officials argued that prior executions using pentobarbital have taken place apparently without the inmates enduring obvious pain and cited a report which says that their latest supply has been “tested by an independent laboratory and found to be 108% potent and free from contaminants”.