Wellons v. Ga. Dep't of Corrections: In Second Wellons Case, Panel Denies Stay of Execution, But Judge Wilson Notes Concern with Georgia's Death Penalty Secrecy Law

Wellons v. Ga. Dep’t of Corrections, No. 14-12663-P, from NDGa

 

Majority Opinion: Per Curiam opinion joined by Circuit Judge Tjoflat and Circuit Judge Marcus:

 

This is the second of two published opinions concerning Mr. Wellons issued on June 17, 2014.  The petitioner was convicted of murdering and raping a 15-year old in 1993. He filed this 42 U.S.C. § 1983 action seeking a temporary restraining order and a declaration that Georgia’s refusal to disclose information concerning the origin of the lethal injection drugs and the qualifications of the execution team violated his constitutional rights.  He further challenged the Lethal Injection Secrecy Act, O.C.G.A. § 42-5-36(d), which makes the manufacturer of lethal injection drugs a confidential state secret. 

First, the panel considered whether these claims were time-barred under the two year statute of limitations for Section 1983 claims in Georgia.  A method of execution claim accrues on the later of the date when a state review is complete or the date on which the capital litigant becomes subject to a new or substantially changed execution protocol.  The majority found that the possibility that neither the risk that the State would use adulterated pentobarbital, nor the adoption of the Lethal Injection Secrecy Act established a significant alteration in the method of execution.  Accordingly, the last substantial change in the execution protocol occurred in 2001, when Georgia switched from the electric chair to lethal injection, and the petitioner’s claims were time-barred.

Second, the panel rejected the claim that the Eighth Amendment entitled the petitioner to information about the nature or source of the drug to be used in his execution.  Speculation that the drug would lead to severe pain or suffering does not constitute evidence that the drug is sure or very likely to cause serious injury and needless suffering.

Third, the panel rejected challenges (under the First, Fifth, and Fourteenth Amendments) to the State’s refusal to provide him with information related to his execution, specifically the source of drugs and qualifications of persons performing the execution. The panel found that none of these amendments afforded the petitioner the broad right to know where, how, and by whom the lethal injection drugs would be manufactured.

 

The petitioner's request for a stay of execution was accordingly denied.

 

Concur in Judgement by Circuit Judge Wilson: Judge Wilson concurred in the judgment, but wrote separately to note what he described as the “disturbing circularity” problem created by Georgia’s secrecy law. He believed that without information about the drug used in the execution, it was impossible for the petitioner to meet his burden.  He also believed that “[u]nless 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.”