Tommy Lynn Sells was executed Thursday night using a lethal injection drug whose source was not disclosed. Sells’ lawyers have argued that without knowledge about the source of the drug, they cannot verify whether it will lead to a cruel and unusual execution that violates the Constitution.
On Wednesday, a federal district judge ruled that the execution could not go forward until the state revealed the source of the drug so that Sells’ lawyers could verify that it would not impose cruel and unusual treatment. But a federal appeals court quickly overturned that ruling, and the U.S. Supreme Court declined to intervene late Thursday.
The pentobarbitol involved in the execution was obtained from what is known as a compounding pharmacy, which makes small-batch drugs and is not regulated by the Food and Drug Administration. Several states are turning to these compounding pharmacies because of a shortage of lethal injection drugs from European drug-makers, thanks to international opposition to the death penalty. Over the past few years, inmates who were executed using small-batch barbituates from compounding pharmacies reportedly experienced prolonged, gasping periods before they finally died.
These risks are particularly high where the source of the drugs and the way they were made remains secret. But states including Oklahoma and Missouri have refused to reveal the name of the pharmacy that made the drugs, claiming they may face threats or pressure to stop distributing the drug for executions because of moral opposition. And keeping their source secret is a new obstacle that several courts have now addressed.
In January, a federal appeals court permitted Missouri to execute a man without ever revealing the manufacturer of the drug that killed him. The inmate in the case never had the opportunity to ensure that the drug would not lead to an execution amounting to cruel and unusual punishment, by verifying the reputation of the pharmacy, questioning the testing performed by a state entity that has in the past approved faulty drugs, or assessing how the drug was manufactured. But an Oklahoma county judge came to the opposite conclusion last week, finding that the inmates had a constitutional right to know the source of the lethal injection drugs. “I do not think this is even a close call,” District Judge Patricia Parrish said.
Reports on Thursday’s execution do not suggest outward signs of a faulty lethal injection drug. But Texas is the number one U.S. executioner, so the ruling will affect a number of other executions, each of which could face a risk of contaminated drugs.