As some may recall, I noted last week that a Civil District Judge in Austin blocked the Texas Department of Criminal Justice’s recent move to get a secret dose of drugs used for lethal injections, obtained from compounding pharmacies that wished to remain anonymous. The next day, after a summary affirmation by a Court of Appeals, the Texas Supreme Court put forward a writ of mandamus that stayed the ruling. Given that the plaintiff in this case only has a few more days on this planet absent judicial intervention, a stay is tantamount to upholding an arguably especially cruel death sentence.
Accordingly, the next step was to Federal Court. Early today, Judge Vanessa Gilmore, a Federal District Judge based in Houston (Southern District of Texas), ordered the TDCJ to disclose the particulars about both the contents and sources of the execution drugs. Gilmore, a nominee of President Clinton who has served since 1994, is somewhat more progressive on 8th amendment issues than her colleagues. Therefore, unsurprisingly, as the Houston Chronicle reports, the order was quickly overturned by the Federal Appeals Court. The fifth circuit Court of Appeals, as many will remember, is one of the most fiercely conservative courts in the land. Most all of the judges were nominees of Reagan or the second Bush, and Obama’s administration has been largely tepid in its willingness to put new Judges on the bench, despite many vacancies.
At this point, the only option left is going to the United States Supreme Court, which is always a longshot, especially on capital case disputes such as this one. Otherwise, Tommy Sells looks to be put to death under this unreliable and untested method that could very possibly be unnecessarily cruel.
Longtime readers of my op-eds on this publication and others will know I am a fervent opponent of the death penalty in all circumstances. The defendant in this specific case, Tommy Sells, is not an sympathetic figure by any stretch of the imagination. He has been convicted of a brutal double murder who likely killed at least seven other people. In a post-arrest interview, he claimed about killing around 70 individuals. If anyone deserves the death penalty, it is Sells.
The problem, however, is that we have this pesky thing called the Bill of Rights, and it prohibits cruel and unusual punishment in absolutely all cases. The eighth amendment, of course, leads me to concur with such great minds as William Brennan and Thurgood Marshall in believing there is never a constitutional application of the death penalty. A bare majority of the country still puts up with the barbaric practice, however, because we have been told that the process of lethal injection is painless.
Of course, when no one knows what is in the drugs or where they come from, that promise is significantly harder to keep.