A Dark Shadow: The Intensification and Expansion of Lethal Injection Drug Secrecy
Published Online: Apr 29, 2023
Page range: 1 - 26
DOI: https://doi.org/10.2478/bjals-2023-0006
Keywords
© 2023 Austin Sarat et al., published by Sciendo
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.
On May 28th, 2014, the Arizona Supreme Court set an execution date for Joseph Wood. Later that same day, the Arizona Attorney General's office sent a letter to Wood's counsel with details about the execution, including the state's intention to use a two-drug cocktail (midazolam and hydromorphone) to put Wood to death. Just a few months earlier, Ohio had used those same drugs in the brutally botched execution of Dennis McGuire.
Wood v. Ryan, 759 F.3d 1076 (9th Cir. 2014).
The Arizona Attorney General's letter to Wood's lawyer also said that the Department of Corrections (DOC) was trying to procure a different drug, pentobarbital, for use in Wood's execution and would alert his attorneys if it could do so. Just over a week later, Wood's lawyers asked for specific information about the source or supplier of the midazolam and hydromorphone, and the DOC's search for pentobarbital. Charles L. Ryan, the director of Arizona's DOC, refused this request. He said only that the drugs were “domestically obtained” and “FDA approved,”
Wood v. Ryan, Criminal Code, A
On June 25th, Wood received final notice that he would be executed with midazolam and hydromorphone. A few days later, he filed a motion for a preliminary injunction seeking information about how the execution protocol was developed, the source and manufacturer of the drugs, and various other details about the drugs that would be used in his execution. On July 10th, a federal district court in Arizona denied this motion. Wood and his legal team appealed the district court's decision, and the Ninth Circuit Court of Appeals halted Wood's execution until he could receive information about the drugs.
Wood v. Ryan,
The court found that stopping the execution would not harm the state.
It came to this conclusion by applying the so-called Wood v. Ryan, 759 F.3d 1076, 1082–83 (9th Cir.), vacated, 573 U.S. 976 (2014).
However, the day before Wood's execution, the United States Supreme Court lifted the Ninth Circuit's injunction.
Indeed, on July 22, 2014-just one day before Wood's planned execution-the Supreme Court vacated the Ninth Circuit's preliminary injunction.
Joseph Wood's failed quest for information about the drugs that led to his botched to his botched execution was not an isolated event. Instead it provides a striking example of the connection between secrecy and problematic executions. Arizona is just one of many states that enacted statutes concealing the identity of drug manufacturers and information about the drugs they produce during the last decade. As we will show, their actions represent a significant departure from the practices that have governed executions throughout American history.
In what follows we argue that the United States has a longstanding, but not well understood, tradition of openness about executions, the identity of executioners, execution methods, and the people or organizations responsible for designing and supplying the instruments used to carry out executions. Existing scholarship does not discuss the way new lethal injection secrecy statutes fit into that history. We fill this gap in the literature by discussing the public's historical right of access to information about executions. Contemporary drug secrecy statutes, we will argue, represent an unwarranted and problematic intensification and expansion of execution secrecy. Those laws cast a dark shadow over America's death penalty.
Until 1936, executions in America were carried out in public. And even after they were moved behind prison walls, information about executions, executioners and execution methods was generally available to the public. In fact, states that now have secrecy statutes in the past often clearly identified who would carry out their executions.
This is not to say that secrecy has never been part of the execution process in the United States. From time to time states have made efforts to conceal the identity of the executioner. Michael Madow,
To understand the traditions surrounding the identity of executioners, let's start with the February, 1855 hanging of William Jung for murder by the state of Louisiana.
However, just a few months later, the identity of Jung's executioner was made public by “[William] Martin, alias Diego Bill, the notorious hangman, was yesterday brought before the court…A long time ago [Martin] was arrested on a charge of robbing a poor negro who was on his way to market…The sheriff came to the city in search of a hangman, and Diego Bill, in consideration of being furnished with a new suit of clothes and $75 in cash, volunteered for the purpose. After performing the job, he returned to the city, committed another crime, and was again placed in jail. Frank Smith came up for hanging, and Diego Bill volunteered for the purpose. For this service he was again set at liberty—but was soon after arrested for robbery in the Third district. Here he remained until the execution of [William] Jung, when he was again released in consideration of his services as hangman.”
In the ensuing decades, newspapers regularly followed the example set by
Occasionally executioners even achieved a kind of celebrity status. For example, later in the 19th century Arkansas's George Maledon was so well known that he was dubbed the “Prince of Hangmen.”
Toward the end of Maledon's career, the
Yet during the same decade in which Maledon earned his title “the Prince of Hangmen,” the identity of other executioners was occasionally protected by a veil of secrecy. For example, in 1896, Utah hanged Charles Thiede for murder. The executioner was hidden by a curtain and his identity never released to the public.
However, newspapers did publicize the identities of other people who were involved in Theide's execution: “Then active preparations for the last scene of the drama of death began. Deputy Sheriffs Montgomery, Neely, Johnson, and Gibbs stepped forward and in a few moments Thiede stood erect. His arms strapped to his thighs, which were strapped together. Another strap passed about his body, fastening his upper arms tightly.”
The turn of the 20th century saw the continuation of this same pattern of disclosure with most executioners identified and a few others not.
New methods of execution came on the scene in the late 19th and early 20th centuries, including the electric chair and the gas chamber. As was the case with hangings, newspapers continued reporting the names of those responsible for administering these new execution technologies.
For example, the day after North Carolina's first electrocution in 1910, newspapers published the identities of nearly everyone involved in the execution.
The paper went on to identify the people who pulled the switch, “With Warden Sale immediately by his side, the inventor of the electric chair, E. F. Davis, of New York, assisted in throwing the switch that carried the death current.”
In some stories newspapers put identifying information about the executioner in the headlines: “Sheriff of Bladen County, Who Hanged Last Man in State, Opposed to Electrocution.” The article, which focused on Sheriff J. M. Clarke's opposition to the electric chair, also reported that he presided over an execution just a week before the article was published.
However, a few states designed execution procedures to conceal the executioner's identity. Arizona's gallows included a number of buttons that would supposedly activate the trap door on which the condemned stood. One person was assigned to each button and the buttons were arranged so that no one could know which one actually sprung the trap. Everyone pressed their button at the same time so that the executioner's identity was unknown.
The following decades are marked by a similar pattern of openness about the executioner's identity with a few exceptions. In 1911, the executioners’ identities were kept secret in Nevada's last hanging. However, newspapers named many of those performing ancillary tasks. For example one Nevada newspaper reported that
Hagerman placed the noose around the murderer's neck, and as he tightened the rope the signal was given to raise the curtain. Captain Muller at the same time completed the adjustment of the straps about Casey's body. He noticed the condemned man start to tremble, and, fearing that he would break down at the last minute, raised his arm as the signal to the three guards concealed behind the partition to the rear. Three knives slashed as many strings and the trap was sprung.
In 1913, Andriza Mircovich became the only inmate in Nevada history to be executed by firing squad.
Espy, M. Watt, and Smykla, John Ortiz. Executions in the United States, 1608–2002: The ESPY File. Inter-university Consortium for Political and Social Research [distributor], 2016-07-20.
Three years later in Florida,
An Alabama state law, enacted in 1923, designated the warden of Kilby Prison as the state's executioner and also designated alternates if he were unavailable.
Ala. Legislative Act, No. 587, (1923): “The warden of Kilby Prison at Montgomery or in case of his death, disability, or absence, his deputy shall be the executioner. In the event of the death or disability or absence of both the warden and deputy the executioner shall be that person appointed by the Board of Convict Supervisors from the county in which such convict is condemned to death or shall be the Deputy of such sheriff or in the absence or disability of such sheriff or his deputy, shall be such other person as may be appointed by the Board of Convict Supervisors for that purpose…” Acts and Resolutions of the General Assembly of the St. of Ga., No. 475. Section 1 (1924).
Frank Owens was the last man hanged in Alabama. Sidney A. King,
Rainey Bethea was put to death in 1936 in what would turn out to be the last public execution in America and the last hanging in Kentucky. Before the execution, Sheriff Florence Thompson announced that she planned to hang Bethea.
Although she insisted she would still pull the trap door, the sheriff hired a “consulting expert executioner,” Phil Hanna, to assist her.
In the weeks leading up to the execution, Sheriff Thompson received hundreds of letters offering to spring the trapdoor for her.
Dear Mrs. Thompson, I am writing you this letter, offering you my services [for] free . . . for several reasons. . . . First you are a woman and have four children, none of which I am sure would want you to spring the trap that sends Rainey Bethea into eternity. Second, I wouldn’t want my mother to be placed in such an unpleasant position. Third, I am an ex-serviceman and served . . . in France in 1918 and 1919, and I know just how you would feel after the execution if you went through with it. You may think it wouldn’t bother you, after it is all over, but I know different. . . .Please do not give this letter to anyone for publication. . . . I am not hunting for publicity. I only want to help you. Your friend, L. Hash
Thompson accepted Hash's offer. As the Hazel Macdonald,
An article in The Eyewitnesses say the press was immensely disappointed when Sheriff Thompson did not appear on the scaffold. In her place was the man described afterward by the local press as ‘the best-looking cop’ in Louisville: Arthur Hash. Despite his stated desire for anonymity, Mr. Hash wore an outfit guaranteed to draw notice and looked tipsy. Hash mounted the steps after the Negro . . . garbed in a white linen suit and white panama hat.
Whether executioners were famous or not, when hanging was America's primary execution method their names were regularly, though not always, made public before or soon after executions took place.
During the first use of the gas chamber in Arizona, the executioner was hidden behind a curtain. A news article in the
However, this same article named other members of the execution team: “The attending physicians–Dr. Hugh F Stanton, state epidemiologist, and Dr. H. B. Steward, prison physician—their eyes [glided] to the quivering countenances through a special observation window, and with elongated stethoscopes leading from the laboring chests to their ears, announced ‘it is over.’”
The
In 1939, Pennsylvania newspapers published the identity and some personal details of the state's electric chair executioner.
The electric chair was used beginning in the late 1800s and from then on access to the identity of the executioner was often identifiable. We begin after the last public hanging in America to continue the story of access to the executioner's identity in America.
Another newspaper published an article on the same day with the headline, “Executioner Goes Duck Hunting After Grim Job.”
When states used the electric chair, the identities of the execution team, not just the executioner, were typically disclosed.
Mac Crary,
Newspapers continued to regularly publish the names of executioners throughout the 1950s, 1960s, and 1970s and state law also disclosed their identities or their official positions. In 1953, Frank Lee Wilson retired as Pennsylvania's executioner, and the “Wilson now will devote his time to a job as superintendent of the Raphael Electric Co. He also will continue to teach night classes in electricity at South High School.” Acts and Resolutions of the General Assembly of the St. of Ga., No. 112, (1956): “There shall be present at such execution the warden of the penitentiary, or a deputy warden thereof, who shall serve as executioner.” Jack Fairweather & Bill Missett,
In 1966, Mike Mayfield conducted Oklahoma's last electrocution. James French was put to death for murdering another inmate while being held for a previous offense. Newspapers reported his executioner's name with little fanfare. For example, the
Five years later, the Jackson, Mississippi Charles M. Hills, Ala. Legislative Acts, Act No. 2360 (1971): “The warden of the William C. Holmes Unit of the prison system at Atmore, or in case of his death, disability or absence, his deputy shall be the executioner. In the event of the death or disability or absence of both the warden and deputy the executioner shall be that person appointed by the commissioner of corrections.” Amy Kidd, George Kuempel,
During the 1980s newspapers also published the names of, or identifying information about, the people responsible for carrying out executions. On March 9, 1981 the Seymour, Indiana
Other examples of the tradition of disclosure surrounding executions include an Alabama newspaper article confirming that Holman Prison Warden J.D. White pulled the switch for the 1983 execution of John Evans III.
Kathy Beasley, Ron Harrist, Ind. Code, §35–38–6–1, Sec 1. (c) (1995).
Departures from the tradition of disclosure of the kind seen in the Woods’ execution began to appear in the 1990s when laws explicitly mandating secrecy about the identity of the executioner were introduced in several states. For example, in 1992 the Kentucky state legislature passed a statute that read, “The identity of an individual performing the services of executioner shall remain confidential and shall not be considered a public record.”
Ky. Laws, Ch. 496, S.B. 310, Section 20 (1990): However, remnants of the disclosure tradition were still present. In 1995 an Indiana statute which made lethal injection the official execution method also stated that, “The warden of the state prison, or persons designated by the warden, shall serve as the executioner.”
Like the executioner's identity, traditionally the public has had access to detailed information about the manner and method of execution.
Jonathan Peters, Chris Woodyard, J
To take another example, newspaper coverage of Ohio's double hanging of Scott Jackson and Alonzo Walling in 1897 included details about the rope and identified the person who made it. As the Each rope is 23 feet in length, and they were made to order in about a week's time from the giving of the order. They were made by Frank Vonderheide, the Main Street cordage dealer, and most of the work was done by Mr. Vonderheide himself. They are made of what is known as silver finish flax sewing twine, there being four strands of 110 threads each, or 440 threads in all.
Woodyard,
Rope makers like Vonderheide often openly displayed and marketed their hanging ropes.
S
Execution materials were also routinely collected as souvenirs by members of the public. Following hangings, spectators gathered small pieces of the rope or chipped pieces of the gallows as souvenirs.
O D
During the first use of the electric chair in William Kemmler's execution, extensive details were available to the press about the electric chair's construction and the number of volts used in the execution. While the New York State law authorizing use of the electric chair initially restricted media reporting on executions,
C S
Edwin Davis, who built the electric chair used in Kemmler's execution, was designated as the “state electrician” for New York. Davis was approved for a patent in 1897 for an early design of his “electrocution-chair.”
United States Patent Office, Edwin F. Davis, Electrocution Chair, SPECIFICATION forming part of Letters Patent No. 587,649, dated August 3, 1897. A
Not only did Davis construct the machine, but he also presided at 240 executions over the course of his career.
S
After the gas chamber was added to America's execution arsenal in 1922,
Chris Wilson, S United States Patent Office, Patent #2,802,462, August 13, 1957.
Informal notes on the particularities of other gas chambers were also readily available to the public. Fred Leuchter, who made part of his living repairing capital punishment devices, easily obtained information regarding the operation of gas chambers and electric chairs which he shared with the public any time he was interviewed.
T
As was the case with the identities of executioners, there is a clear pattern of transparency about execution methods. However, there were some notable exceptions. Several states made efforts to limit media reporting on capital punishment in the late 1800s. They passed laws forbidding the press from writing about the details of executions because of the gruesome and sensational stories the press told.
Stuart Banner discusses the development of these laws in several states: “New York enacted the first of these laws in 1888. The following year Colorado and Minnesota barred journalists from describing hangings. Similar laws were later enacted in Virginia, Washington, and Arkansas. These bans were widely flouted. In 1891, after a quadruple execution was lavishly recounted in the New York press, the city's district attorney obtained indictments against the editors of several papers, but the resulting criticism of the ban was so strong that the legislature repealed it soon after. Although newspaper editors in the affected states claimed to be confident that such censorship was inconsistent with freedom of the press, the newspapers lost their primary constitutional challenge when the Minnesota Supreme Court upheld the state's statute. (At the turn of the twentieth century the First Amendment and its state constitutional analogues were very rarely invoked and were interpreted more narrowly than they are today.) The statutes nevertheless remained largely unenforced, and the press continued to report the details of executions.” B
Before the full flourishing of execution secrecy laws of the kind seen in the Joseph Wood case, several state protocols contained provisions for some limited degree of secrecy. In 1981, four years after Oklahoma became the first state to adopt lethal injection as its execution method, Jay Chapman, Oklahoma's Chief Medical Examiner and pioneer of the three-drug lethal injection cocktail, wrote to the Oklahoma Department of Corrections with suggested changes its the lethal injection protocol. One of his suggestions read:
[...] the warden shall choose one (1) person to administer the lethal agents. The first and second alternates shall also be chosen to serve in the event that the designated individual is unable for any reason to participate in the execution. The identities of these individuals shall not be disclosed.
Letter From Chief Medical Examiner Dr. A. Jay Chapman to Dr. Armond Stuart of the Department of Corrections, with suggested revisions for execution protocol. June 24, 1981,
As previously noted, a few death penalty states limited media access, prohibited photography or recording of executions, and even kept secret details about when and how the inmate was transported to the execution chamber.
Texas Department of Criminal Justice Execution Protocol (Sep., 2005): “No public announcement shall be made concerning the exact time, method, or route of transfer” (6). “No family or media visits allowed at the Huntsville Unit” (7); Tennessee Department of Corrections Execution Protocol (September 2013): “Representatives of the news media are not allowed inside the secure perimeter of the institution during the time of active Death Watch or during an execution for any purpose whatsoever, unless selected as a witness to the execution” (49). Photographic or recording equipment are prohibited at the execution site during the execution (93); Oklahoma Department of Corrections Execution Protocol (October 2010): “No cameras, tape recorders, or other recording devices will be allowed in the viewing area.” (13). Oklahoma Department of Corrections Execution Protocol (October 2010): “The Warden of the Oklahoma State Penitentiary or designee will notify the executioners of an execution date in a timely manner. The identities of these individuals will remain confidential.” (8); Tennessee Department of Corrections Execution Protocol (Sep. 2013): “The identity of the Execution Team is confidential” (50); Texas Department of Criminal Justice Execution Protocol 4/25/05: “Employee participants in the Execution Process shall not be identified or their names released to the public” (9). The execution team before the proliferation of drug secrecy statutes generally included individuals present and directly involved with executing the inmate, including the warden, executioner, escort officers, recorders, and supervisors. Tennessee Department of Corrections Execution Protocol, September 2013, “The execution team shall consist of: Warden, Deputy Warden, Executioner, Extraction Team, Death Watch Team, IV Team, Lethal Injection Recorder, Facility Maintenance Supervisor, MIS Security Systems Technician(s), and Escort Officer(s).” (7)
Since 2010, fourteen states have enacted laws that extend and intensify secrecy surrounding executions.
Robin Konrad, In Wood v. Ryan,
For example, Georgia's 2013 statute
Konrad, [...] the identifying information of any person or entity that manufactures, supplies, compounds, or prescribes the drugs, medical supplies, or medical equipment utilized in the execution of a death sentence shall be confidential and shall not be subject to disclosure [...] Such information shall be classified as a confidential state secret.
Ga. Code Title, § 42-5-36, (2019).
Idaho's secrecy law, which was passed in February 2022, makes the identities of
[a]ny person or entity who compounds, synthesizes, tests, sells, supplies, manufactures, stores, transports, procures, dispenses, or prescribes the chemicals or substances for use in an execution or that provides the medical supplies or medical equipment for the execution process” confidential and inadmissible as evidence in court.
Act of Idaho Legislature, H.B. 658 (2022). Arkansas is the only death penalty state with an exception in its new secrecy statute that allows disclosure of the identities of lethal injection drug producers and suppliers “in litigation under a protective order.”
Of the death penalty states that have carried out lethal injection executions since 2010, all withheld some information about the execution process. Every state except one withheld information about the source of their execution drugs.
In 2015, Senator Joan Huffman authored Texas Senate Bill 1697, which amended Article 43.14 of the Code of Criminal Procedure. This amendment extended the veil of secrecy to include the “name, address, and other identifying information” of “any person or entity that manufactures, transports, tests, procures, compounds, prescribes, dispenses, or provides a substance or supplies used in an execution.”
Act of Texas Legislature, Ch. 209, S.B. 1697, Sec. 1, September 1st, 2015.: “The name, address, and other identifying information of the following is confidential and excepted from disclosure under Section 552.021, Government Code: any person who participates in an execution procedure described by Subsection (a), including a person who uses, supplies, or administers a substance during the execution; and any person or entity that manufactures, transports, tests, procures, compounds, prescribes, dispenses, or provides a substance or supplies used in an execution.” 84th Tx. Leg., S.B. 1697 - Statement of Legislative Intent, May 19, 2015.
The sponsors offered no evidence of credible threats to any pharmacy. Nevertheless, they contended that if their identities were not protected “Almost none of the manufacturers or compounders will sell this drug to Texas or any other state right now.” References to vague threats of violence and intimidation and acknowledgement of the necessity of secrecy to help ensure the lethal drug supply have been common justifications for what we call “the new secrecy.”
Deb. surrounding 2014 La. H.B. 328, (Emily Lane, Discussing the foolishness of these threat of violence claims, Judge Jane Stranch writes, “[a]s Sister Helen Prejean pointed out in her testimony for the Plaintiffs, anti-death penalty advocates seek to preserve the lives of even those convicted of serious crimes—hardly a group of activists likely to revert to violence against pharmacy employees.” In re: Ohio Execution Protocol Litigation, Case No. 2:11-cv-1016 (Jane Stranch Dissent). Mary Fan's article
Some states have achieved similar enhancements of secrecy through administrative action rather than legislation. For example, the Alabama Department of Corrections treats the state's lethal-injection protocol as confidential and “outside the purview of a public records request.”
U
Whether by legislation or administrative action, the last decade has witnessed a dramatic intensification and expansion of the regime of secrecy. It represents a clear departure from traditions of disclosure surrounding the execution process. The new secrecy laws conceal the identities of drug suppliers or expand the definition of the already confidential “execution team” to include them.
When challenged in court, judges have generally sided with the state and resisted calls for disclosure. For example, in 2014 Tennessee death row inmates filed suit seeking the names of officials involved in the lethal injection execution process as well as details about the execution itself.
West v. Schofield, 460 S.W.3d 113 (TN S.C. 2015): “We conclude that Tennessee Code Annotated section 10–7–504(h) does not create a privilege that protects the identities of John Doe Defendants from pretrial discovery.”
Writing for the majority, Justice Jeffrey Bivens pointed to statements made by Senator Mark Norris, who sponsored the secrecy legislation, as a signal of legislative intent:
There was a Court of Appeals decision two years ago, the Ray case, which interpreted our current statute more narrowly than we think is appropriate. In fact, so narrowly as only applying to persons that it has become difficult for the Department of Correction sometimes to obtain the materials that are needed because those who would provide the materials are afraid that they will be subject to some kind of exposure or liability. What this bill does is to clarify that persons and entities, persons or entities, have the same protections under the... exemptions from public disclosure.
Justice Bivens also referenced the struggles that Departments of Corrections in Tennessee and elsewhere have had in obtaining drugs and other materials for execution, implicitly recognizing that suppliers would be reluctant to be involved in executions without secrecy.
Reflecting the same kind of argument used by proponents of execution secrecy in Texas and other states, Bivens noted that, “The reasons supporting nondisclosure of the identities of those involved in the execution of a death row inmate ‘are obvious, including avoiding the risk of harassment or some other form of retaliation [...]’”
Landrigan v. Brewer, WL 4269559 (Az. D. 2010); In Re: Ohio Execution Protocol, 868 F.Supp.2d 625 (S.D. Ohio, 2012); Schad v. Brewer, 732 F.3d 946 (9th Cir. 2013); Wood v. Ryan, 759 F.3d 1076 (9th Cir. 2014); Owens et al. v. Hill, 295 Ga. 302 (GA S.C. 2014); Waldrip v. Owens, 014 WL 12496989 (Westlaw Citation) (Ga. N.D. 2014); Jordan v. Hall , WL 928871 (E.D. Missouri, 2015); West v. Schofield, 460 S.W.3d 113, (Tn. S.C. 2015); Guardian News and Media LLC, et al. v. Ryan, 225 F.Supp.3d 859, (Az., 2016).
The existing literature on lethal injection drug secrecy identifies three consequences of the new secrecy.
Drug secrecy involves attempts to shield information about the drugs used in lethal injection (identity of drug supplier, identity and aspects of drug themselves, drug protocol, how protocol was determined). Mennemeier, Nathaniel Crider. Eric Berger, Berger,
With respect to the first of these consequences, some scholars argue that the new secrecy laws are incompatible with First Amendment values. Public debate requires access to relevant information. Without that information, speech becomes empty and ritualistic. Informed public consideration of the death penalty in general, and lethal injection in particular, requires public access to details surrounding the lethal injection process.
Martin McKown, Peters,
The new secrecy also creates a circularity problem for death row inmates. To make a legitimate claim of cruel and unusual punishment, inmates need complete information surrounding the lethal injection process. However, they cannot access this information unless they have a legitimate Eighth Amendment claim.
Berger,
Many scholars have described the new secrecy laws as a kind of “band-aid,” bury-your-head in the sand solution to a serious problem, barring inmates from discovering the causes of botched executions and preventing inmates from ensuring that their own executions are not botched. The more that states keep their execution procedures secret, the more the risk of unnecessary pain grows.
Berger, Berger,
The new secrecy laws were enacted as a response to difficulties death penalty states encountered in obtaining supplies of lethal injection drugs, shielding
James Gibson & Corinna B. Lain, Matt Ford, Gibson & Lain,
In response, death penalty states have turned to compounding pharmacies.
“ Center for Drug Evaluation and Research,
In addition, state officials have violated the law to obtain lethal injection drugs. We know about this only when regulatory agencies intervene or when pharmaceutical companies reveal it. Those drugs have been obtained from unregulated and unreliable sources, posing a great risk to inmates who are executed with them. In 2011, for example, the Drug Enforcement Administration (DEA) started seizing sodium thiopental from several state DOCs.
Jabali-Nash & Naimah.
In April 2017, America's largest drug distributor accused Arkansas officials of illegally procuring lethal injection drugs. The company, McKesson Pharmaceuticals, said Arkansas fraudulently bought its drug, vecuronium bromide, a paralytic used in many three drug lethal injection protocols. According to McKesson's lawyer, Arkansas's prison system “never disclosed its intended purpose for these products.” In fact, Arkansas officials purchased the drugs using an account opened under the medical license of an Arkansas physician. McKesson's lawyer argued that this deception “implicitly represented that the products would only be used for a legitimate medical purpose.”
Alan Blinder,
In October of 2020, Ed Pilkington, Az. Revised Statutes, A.R.S. § 13-757(C) (2009), State officials’ hiding behind secrecy to conceal misconduct is an ongoing trend. In a damning report, two newspapers revealed that Idaho officials hid the intended use of lethal injection drugs that they were buying, falsified official documents to hide their tracks, and “acted in bad faith to stonewall public records requests for execution-related information” over the course of the past decade. In November 2011, the Idaho Department of Corrections (IDOC) employed a pharmacist to travel Salt Lake City and act as a front for the illegal purchase of pentobarbital from a Utah pharmacy. A former IDOC employee testified in a deposition that IDOC had paid “upward of $10,000 in cash” for the out-of-state drug purchase. Some scholars provide solutions that could remedy problems associated with secrecy without repealing the secrecy statutes outright.
This article documents a historically unprecedented intensification and expansion of the regime of execution secrecy. We argue that the new secrecy represents a significant departure from the longstanding tradition of openness about the identity of the executioner and the suppliers of execution methods. This departure is particularly consequential when lethal injection is the method of execution.
Kelly Mennemeier explains why this is the case. She argues that knowing the details about lethal injection drugs is more important than knowing details about past execution materials. As she notes, “The type of rope or gun or supplier of electricity or gas” does not “intimately impact” the result of executions. However, with lethal injection, “[I]mproper drug dosages or concentrations, expired drugs, and contaminated drugs risk [causing] the condemned prisoner excruciating pain.”
No one can properly evaluate those risks without knowing the identity of lethal injection drug suppliers and details about the drugs.
Mennemeier,