Opinion

An execution in Texas was a moral failure and a legal one

The state of Texas on Thursday executed a man named Tommy Sells after a series of whipsawing court decisions that ultimately denied Sells his due process right to investigate whether the lethal injection met constitutional standards.

This is no defense of Sells. If evil exists in this world, he was it, responsible for a series of known heinous murders, and who knows how many others. But that is still insufficient cause for the government to kill him. It is sufficient cause to have locked Sells away from society until he died of natural causes. And the moral failure of the execution was compounded by a legal one.

The issue hinges on who compounds the drugs to be used in the execution. Several states, including Texas, have laws or policies that ban the public identification of the drug source. The states say it is to protect suppliers from public backlash, though there is thin evidence of any such threat, as the Associated Press reports. The bans do give the suppliers cover from public scrutiny, which is also a misapplication of governmental secrecy laws. These businesses are contractors selling supplies to a governmental entity. Their identities and the costs to the public treasury should be open to examination, as should the process under which the drugs were procured.

But the more significant issue here is that the condemned are denied the right to know the specific method of execution. Yes, they know they will be killed by lethal injection. But these drugs are being prepared by compounding pharmacies with inconsistent procedures, which raises legitimate questions about whether the compounded drugs (a process of tailoring pharmaceuticals for specific patients) will cause excessive pain, and thus violate the 8th Amendment ban on cruel and unusual punishment.

The Supreme Court meets Friday to discuss whether to hear appeals in related cases from Louisiana and Missouri. If Thursday’s refusal by the court to hear Sells’ last-ditch appeal is any indicator, those discussions likely won’t go well for death-penalty opponents. But one can still hope. This is the statement released by Sells’ attorney, Maurie Levin and Jonathan Ross:

"It is our belief that how we choose to execute prisoners reflects on us as a society. Without transparency about lethal injections, particularly the source and purity of drugs to be used, it is impossible to ensure that executions are humane and constitutional. It is our hope that the U.S. Supreme Court and the Texas courts will ultimately agree that we must have transparency about the execution process in order to ensure that prisoners are able to protect their Eighth Amendment rights.

"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."

Executions are a reflection on American society. And it doesn’t reflect well. As Albert Camus wrote in his 1957 essay “Reflections on the Guillotine,” an execution is not an act of justice, but an act of revenge:

"Capital punishment is the most premeditated of murders, to which no criminal’s deed, however calculated, can be compared. For there to be an equivalency, the death penalty would have to punish a criminal who had warned his victim of the date on which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not to be encountered in private life."

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