Death row inmate Christopher Sepulvado’s death warrant has been cancelled, giving his lawyers more time to argue that the state’s lethal injection method violates his constitutional rights.
In a motion filed Thursday, lawyer Gary Clements does just that, asking the full U.S. Court of Appeals for the Fifth Circuit to reconsider his argument that Sepulvado must be provided with more information about how he is to be executed with a single drug, pentobarbital, rather than the three-drug cocktail used by the state before.
Other states are facing similar questions over the use of pentobarbital in executions, Clements wrote:
As execution procedures are rapidly changing nationwide, notice and opportunity to be heard regarding new methods of execution are critical to the preservation of both condemned inmates’ due process rights and the prohibition on cruel and unusual punishment.
Meanwhile, Clements has filed another motion arguing that a three-judge panel of the appeals court erred on a few factual points regarding when the state changed its execution protocol and when Sepulvado learned about it.
Last week, the Louisiana Supreme Court ruled that a state judge improperly issued Sepulvado’s death warrant. That means Sepulvado’s execution will not go forward on Nov. 5.
Sepulvado won a stay of execution in February, arguing that his due-process rights had been violated because the state hadn’t described its execution protocol and hadn’t provided information on how it got the drug that would kill him.
Sepulvado’s lawyers have questioned the efficacy of the state’s supply of pentobarbital, and the state hasn’t disclosed whether its supply of the drug has expired. The Lens has also pursued answers to that question.
A three-judge panel of the Court of Appeals for the Fifth Circuit reversed this stay in August, noting that no other appellate court had recognized this due-process claim. “We decline to be the first,” they wrote.
In the plea for rehearing, Clements argued that the execution rules must be reexamined because death penalty practices in the U.S. are not static.
He pointed out that sodium thiopental, part of the three-drug cocktail used to execute prisoners around the country, had become unavailable in the past three years. So states have switched to a single drug, pentobarbital.
However, with a maximum shelf life of three years, states’ supplies of pentobarbital are expiring. Texas’ supply expires in September, for example.
As those drugs start to expire, Clements argued that lawyers in other states will face the same questions as in Louisiana.
Other states have refused to disclose when their drugs expire. Clements noted in his petition to the appeals court that a Georgia court stayed an execution in July due to the state’s secrecy surrounding its lethal injection drugs.
In 2011, the Drug Enforcement Administration confiscated Georgia’s supply of an execution drug because the state may have illegally imported it from Great Britain. Before those drugs were confiscated, the non-FDA-approved drugs were used to execute death row inmates.
This year, Georgia passed the Lethal Injection Secrecy Act, which prevents anyone from learning the manufacturer of lethal injection drugs and how they were obtained.
Louisiana also tried to keep its protocol, which has changed since the state bought pentobarbital, secret. A judge denied the request.
Clements said the Department of Corrections is supposed to reveal the expiration date of the execution drug on Tuesday, the deadline to respond to a motion for discovery.