Do states have to disclose lethal injection drugs? Supreme Court refuses case.

The US Supreme Court refused on Monday to take up a case examining whether a death row inmate has a right to force state corrections officials to disclose details about the lethal injection process prior to his execution.

In a petition urging the court to take up the case, Washington appellate lawyer Thomas Goldstein had called it “the most significant question in capital litigation in the United States today.”

Last Thursday, the justices refused to entertain the same issue in a last-minute appeal by Texas death row inmate Tommy Lynn Sells. The court declined to issue a stay, and Mr. Sells was executed that evening.

The underlying issue in such appeals isn’t whether the condemned prisoner may be innocent or is otherwise undeserving of a death sentence. The sole question is whether state corrections officials are required to publicly reveal the drugs and methods to be used to carry out the execution.

The issue is arising amid an increasingly successful campaign by capital punishment opponents to pressure drug companies into refusing to provide the drug pentobarbital for executions.

States have faced great difficulty obtaining sufficient quantities of the drug to carry out executions. Many have developed alternative protocols, which are also coming under legal attack.

In addition to the name of the drug, lawyers for death row inmates want to know the name of the compounding pharmacy mixing the toxic drug for use in executions. In many cases, the name of the pharmacy has been publicly disclosed, and the businesses become targets for protests and boycotts by death penalty opponents.

Many pharmacies are now declining to provide execution drugs to requesting states to avoid the disruption to their businesses and the media spotlight.

In response, some states have sought to keep their execution procedures secret, including withholding the name of the drug or drugs to be used and the name of the company or compounding pharmacy supplying the drugs.

Lawyers for death row inmates say they must know this information so that they can adequately protect their clients from unnecessary pain and suffering during state-authorized lethal injections.

“The need for judicial oversight has never been greater than it is today,” Mr. Goldstein wrote in his petition.

He said that states are taking “calculated steps to shroud the circumstances of the lethal injection process in secrecy at the same time as drug shortages have led prison officials to experiment dangerously and irresponsibly with different pharmaceuticals.”

The high court petition rejected on Monday was filed on behalf of Louisiana death row inmate Christopher Sepulvado, who was convicted of killing his 6-year-old stepson in part by forcing him into a tub full of scalding water. The water heater at the house was set at 210 degrees, police said.

The boy was being punished because he had soiled his pants.

A Louisiana court later commented that the boy had been “beaten, tortured, and scalded in a manner which led to an especially cruel and heinous death.”

Lawyers representing Louisiana urged the high court to reject the appeal. They said there was no right for a condemned inmate to receive notice of the execution protocol and the drugs to be used.

All four federal appeals courts to examine the issue have ruled that there is no right to advance notice of a state’s execution procedures, the lawyers said.

Louisiana has a significant interest in enforcing criminal judgments, they said. “Courts are not supposed to function as boards of inquiry charged with determining best practices,” they said in their brief.

Louisiana, Goldstein said, is apparently considering adopting an execution protocol used in Ohio. The Ohio protocol resulted in an inmate gasping for breath for several minutes, he said.

The lawyer said the prospect of using the controversial Ohio protocol in Louisiana raises Eighth Amendment concerns that the procedure could result in an execution that becomes cruel and unusual.

Goldstein said there is also evidence that Louisiana is still trying to obtain a fresh supply of pentobarbital, which would allow the state to revert to its old lethal injection protocol.

“The state has hastily and haphazardly integrated an untested and unsafe combination of drugs into its protocol, creating a significant risk that [Mr. Sepulvado] will endure unnecessary pain and suffering,” Goldstein wrote. “A likely side effect of these drugs is a prolonged, painful feeling of choking to death.”

The lawyer added: “Judicial review is the only safeguard [Sepulvado] and society have against these threats to the Eighth Amendment.”

The case was Sepulvado v. Jindal (13-892).