Executions

Should State Executions Proceed Under a Veil of Secrecy?

In his Sidebar column in the N.Y. Times, Supreme Court reporter Adam Liptak recently discussed the concerns about states denying death row inmates information about how they will be executed. Liptak highlighted the recent execution of Michael Taylor in Missouri, where the state has made the pharmacy providing the drugs for lethal injection part of its "execution team," thus obscuring any failings the pharmacy may have. This secretive approach drew criticism from a minority of judges on the U.S. Court of Appeals for the Eighth Circuit, and a dissent from three Justices of the U.S. Supreme Court. Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor said they would have granted Taylor a stay of execution to consider his due process rights to information about the state's method for killing him. As Liptak said, "[I]t is hard to see how death row inmates can argue that a given method of execution violates the Eighth Amendment’s prohibition of cruel and unusual punishment if they are barred from knowing what the method is." Though Taylor was executed, other death row inmates are raising similar claims that may come before the Supreme Court.

Excerpts from Dissent Regarding Secrecy of Lethal Injection Drugs

In a dissent from a decision by the U.S. Court of Appeals for the Eighth Circuit allowing Missouri's execution of Michael Taylor on February 26, three judges sharply criticized the secrecy of Missouri's lethal injection protocol as a violation of Taylor's right to due process. The dissenters would have stayed the execution to allow Taylor to obtain information about the source of the execution drugs:

  • "Because Taylor seeks to determine whether the drug to be used in his execution will result in pain or in a lingering death, it bears repeating the importance of the identities of the pharmacists, laboratories, and drug suppliers in determining whether Missouri's execution of death row inmates is constitutional."
  • "[F]rom the absolute dearth of information Missouri has disclosed to this court, the 'pharmacy' on which Missouri relies could be nothing more than a high school chemistry class."
  • "If through lack of experience or lack of time to do adequate testing, the pharmacy has manufactured something which is quite painful, Taylor's constitutional rights would be violated."
  • "Missouri has a storied history of ignoring death row inmates' constitutional rights to federal review of their executions. I once again fear Missouri elevates the ends over the means in its rush to execute Taylor."

In Missouri, Testimony About Secret Cash Payments for Execution Drugs

In Missouri, the Director of the Department of Corrections testified that the state obtains its lethal injection drugs by sending a correctional official to another state with $11,000 in cash to pay a compounding pharmacy called The Apothecary Shoppe. The officer then hand delivers the drug to the department. At a legislative hearing on February 10, George Lombardi of the DOC said pentobarbital was obtained in Oklahoma by paying in cash in order to maintain the anonymity of the pharmacy. Also testifying was Jacob Luby, an attorney with the Death Penalty Litigation Center. Luby raised concerns that the drug would not be stored at the proper temperature in transport: “First, let’s address the fact that this drug is supposed to be kept frozen and not at room temperature,” Luby said. “We’ve got someone driving a drug across state lines after purchasing it in cash and delivering it to the department and until a few weeks ago, we didn’t even know who was selling us the drug.” Bills have been proposed in Missouri to require execution protocols to be more open to public scrutiny. The Department of Corrections is currently exempt from that process. Concerns were also raised about executions occurring before appeals had been settled. Committee Chair Jay Barnes said, “If we have a situation where the state is executing people while they still have legitimate legal claims in court, that’s a serious issue. I want to make sure we aren’t executing someone because we are statutorily keeping them from the finding of fact that’s necessary for the case to continue.”

Lethal Injection Questions Prompt Official Reviews in Louisiana, Florida, Ohio

Questions about the appropriateness of new lethal injection methods have recently stayed executions in Louisiana and Ohio and caused the Florida Supreme Court to order a hearing prior to the next execution there. In Louisiana, Christopher Sepulvado received a 90-day stay to allow a federal court to determine whether the state's new protocol violates his constitutional protection against cruel and unusual punishment. He was scheduled to be executed on February 5. The Florida Supreme Court ordered a similiar hearing to be held before Paul Howell's scheduled execution on February 26 to examine the state's new protocol. In Ohio, Governor John Kasich ordered an 8-month stay of execution for Gregory Lott so the state can complete a review of its new lethal injection procedure, first used to execute Dennis McGuire on January 16, resulting in gasping and choking sounds from the inmate. The common drug in question in all three states is midazolam, a sedative used as the first drug in a 2- or 3-drug protocol. 

States' Secrecy in Lethal Injections Challenged as Interference with Freedoms of Speech and Press

A pending federal lawsuit in Missouri asserts that a state law shrouding the makers of lethal injection drugs in secrecy is a form of prior censorship and an interference with the pulic's right to freedom of speech and freedom of the press under the First Amendment. U.S. District Court Judge Beth Phillips, who has already expressed concern about withholding this information from a death row defendant facing execution, is expected to rule soon on this broader problem. The Georgia Supreme Court is also weighing the constitutionality of a similar ban on releasing information in that state. States do not want to reveal the sources of their drugs because it might embarrass the pharmacists who are preparing the chemicals. Under Missouri's law, anyone who publishes information about the pharmacy making the drug is liable to be sued. In 2006, the St. Louis Post-Dispatch revealed that the doctor who prepared the drugs for Missouri's executions had been publicly disciplined by the state medical board, prompting the legislature to pass the secrecy law. The paper also identified a nurse on the execution team who was on probation for stalking. The editor of the Post-Dispatch later wrote, "We believe the law is unconstitutional, and we also believe it stifles public discussion and hinders governmental accountability."

Louisiana To Change Lethal Injection Procedure One Week Before Execution

Just one week before the scheduled execution of Christopher Sepulvado, Louisiana announced it has been unable to  find pentobarbital for its lethal injections and instead may apply a new procedure used only once before in the U.S. If the state cannot obtain pentobarbital, it will employ the two-drug procedure used by Ohio on January16 to execute Dennis McGuire, an execution that resulted in gasping sounds and movements by the inmate over an extended period of time. That procedure involved midazolam--a sedative--and hydromorphone--a painkiller. Gary Clements, an attorney for Mr. Sepulvado, said Louisiana is violating its own protocol, which requires that lethal injection drugs be obtained at least 30 days before an execution. "Just days before a scheduled execution, the State has significantly changed its execution protocol without independent oversight or public scrutiny," Clements said. "[This] once again demonstrates that the State is not prepared to move forward with Mr. Sepulvado’s scheduled execution in a manner that comports with state and federal laws, and the U.S. Constitution." Sepulvado's attorneys argue his due process rights are being violated by the lack of information about the manner of his execution, and his right to be spared cruel and unusual punishment would be violated by an execution using faulty drugs.

Missouri Execution Drugs Challenged As Violating Federal Law

Attorneys for a Missouri inmate facing imminent execution have asserted that the Department of Corrections has violated state and federal laws in acquiring its lethal injection drugs. Herbert Smulls is scheduled for execution on January 29, but a challenge has been filed in federal court alleging that the state's pentobarbital was obtained from a compounding pharmacy in Oklahoma, which is unlicensed in Missouri. The suit also stated the drug has not been stored properly. A correctional official, who helped find a compounding pharmacy that would sell lethal injection drugs to Missouri, said he did not know if the pharmacy was licensed to sell in the state. Cheryl Pilate, Smulls' attorney, said, "We were very surprised, really, by the lack of attention that was given to vetting the pharmacy -- finding out if it was qualified to do what it did, if it was inspected, if it was properly licensed. It seemed that there was almost no knowledge actually of the capabilities of the compounding pharmacy." In a January 22 letter to the Food and Drug Administration, Pilate alleged Missouri violated several federal laws by obtaining pentobarbital from a compounding pharmacy without a valid prescription.

Problems Arise As Ohio Tries New Execution Procedure

On January 16, Ohio carried out the first lethal injection in the U.S. using a new protocol, resulting in a lengthy and disruptive execution. Ohio employed a back-up procedure to execute Dennis McGuire, using midazolam, a sedative, and hydromorphone, a painkiller. Witnesses to the execution reported that McGuire snorted, gasped, and struggled during the execution, which took longer than usual for death to occur. Deborah Denno, a professor at Fordham Law School and lethal injection expert, said, “Whether there were choking sounds or it was just snorting, the execution didn’t go the way it was supposed to go.” Anesthesiologists had warned that the new cocktail of drugs could cause a condition called "air hunger," in which the inmate would gasp for air but be unable to absorb oxygen. On January 9, Oklahoma executed Michael Wilson using different drugs, and the inmate on the gurney said, “I feel my whole body burning,” as the drugs began to flow.

Pages