On Tuesday, the first execution since the botched, torturous death of Clayton Lockett seven weeks ago went through without a hitch. After apologizing for his actions, Marcus Wellons was executed for the rape and murder of his neighbor, 15-year-old India Roberts, reports The New York Times.
However, a concurrence in the denial of a last minute stay by the Eleventh Circuit highlighted an unanswered question that remains for Georgia and other states with capital punishment and secretly sourced lethal injection drugs.
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No Stay Without Proof
Wellons' last-minute request for a stay argued that Georgia's Lethal Injection Secrecy Act, which prohibits disclosure of the source of drugs or the members of an execution team, violated his Eighth Amendment right to be free from cruel and unusual punishment, as it creates "a substantial risk of serious harm or an objectively intolerable risk of harm."
But the per curiam panel held that he must prove "a demonstrated risk of severe pain that is substantial when compared to the known alternatives." The panel cited their own precedent giving the benefit of the doubt to compounding drugs, noting that "speculation that a drug that has not been approved will lead to severe pain or suffering 'cannot substitute for evidence that the use of the drug is sure or very likely to cause serious illness and needless suffering.'"
Prove It Without Proof
And just as we were thinking, "Chicken or the egg? He can't prove anything when there is a law denying him proof," Judge Wilson chimed in with a concurrence that noted:
Possibly due to his lack of information about the compound pentobarbital that will be used and the expertise of the people who will administer his execution, Wellons has not shown such a risk. Indeed, how could he when the state has passed a law prohibiting him from learning about the compound it plans to use to execute him? [...] Without additional information about the method of his execution, it seems nearly impossible for Wellons to make the argument that Defendants' planned execution creates an "objectively intolerable risk of harm."
Judge Wilson also took issue with the secrecy law's effect on the court:
I have serious concerns about the Defendants' need to keep information relating to the procurement and nature of lethal injection protocol concealed from him, the public, and this court, especially given the recent much publicized botched execution in Oklahoma. Unless judges have information about the specific nature of a method of execution, we cannot fulfill our constitutional role of determining whether a state's method of execution violates the Eighth Amendment's prohibition against cruel and unusual punishment before it becomes too late.
For what it's worth, according to KFOR 4, the botched execution was not a compounding pharmacy error -- it was a missed vein, according to the autopsy. Under Georgia's secrecy law, the qualifications of the execution team would be kept confidential as well.
Previously, on FindLaw
This wasn't Wellons' first appearance on these hallowed pages. In 2012, the Eleventh Circuit rejected his request for habeas relief on the basis of anatomical chocolates (a chocolate penis and breasts, to be exact) that were gifted by the jury to the judge and bailiff during Wellons' rape and murder trial.