Secrecy

With Drugs Expiring and Lawsuits Pending, Nebraska Prosecutors Seek to Expedite Execution

Facing an August 2018 expiration date for two of the drugs in Nebraska's experimental execution protocol, state Attorney General Douglas Peterson (pictured) has asked the Nebraska Supreme Court to expedite consideration of the prosecutor's request to set a July execution date for condemned prisoner Carey Dean Moore. The attorney general has petitioned the court to schedule Moore's execution for July 10 "or alternatively for a date in mid-July," despite the pendency of several lawsuits, which will not be resolved before August, that challenge various aspects of the state's authority and ability to carry out executions. Nebraska intends to use a four-drug execution protocol featuring three drugs—the opiod pain medication fentanyl, the sedative valium, and the paralytic drug cisatracurium—that have never before been used in an execution, followed by the heart-stopping drug potassium chloride. Potassium chloride has been described as feeling like liquid fire if administered to a person who has not been adequately anesthetized. Several challenges to the state's administration of the death penalty that have been filed by the ACLU of Nebraska are currently before the courts. These include a case on appeal before the Nebraska Supreme Court arguing that Governor Pete Ricketts and other state officials "improperly seized and exercised legislative power" when they allegedly "proposed, initiated, funded, organized, operated, and controlled the referendum campaign against" the death-penalty repeal law enacted by the state legislature over the governor's veto in 2015; and a second lawsuit challenging the state's lack of transparency surrounding execution drugs and team members, which is currently awaiting a trial-court ruling. The state Department of Corrections recently released some documents regarding execution team training in response to a public records request by the ACLU, but refused to provide documents indicating whether and to what extent execution team members had specialized experience or training in intravenous-access procedures or any documents relating to correspondence with doctors or experts regarding lethal injection. ACLU of Nebraska Legal Director Amy Miller said that the documents released by the state provide "no adequate assurance that we would be looking at a smooth, well-conducted execution," and remarked that "[t]he veil of secrecy that has dropped on all matters relating to the death penalty is very concerning." Nebraska has never carried out an execution using lethal injection. Moore, who was sentenced to death in 1980, is Nebraska's longest incarcerated death-row prisoner. At trial, he waived his right to a jury and presented no evidence in his defense. He recently fired his current appointed counsel and has asked to be executed. In a statement released in April, ACLU of Nebraska's Executive Director Danielle Conrad said, "it is precisely because [Moore] is not fighting that our institutions bear extra responsibility to check themselves by ensuring that the laws are followed and that an unlawful and potentially cruel and unusual execution does not take place." 

Courts in Indiana and Idaho Grapple With Challenges to Execution Secrecy

Courts in Idaho and Indiana are grappling with how to respond to legal challenges to lethal-injection secrecy laws after corrections officials in both states refused to release execution information requested under state public records laws. In both states, officials refused to provide details about execution drugs and their sources, saying that state law insulates the information from public disclosure. In Idaho, Judge Lynn Norton ordered the Department of Corrections to release information about the two most recent executions in response to a public records request filed last year by University of Idaho law professor Aliza Cover seeking information on the state's execution drug purchases, expiration dates and other related information for a project researching the effects of lethal-injection secrecy. Judge Norton ruled that state officials could redact the identities of individuals involved in the executions, including correctional staff members, doctors, and witnesses. Jeff Zmuda, Deputy Director of the Department of Corrections, had argued against public disclosure, saying it endangered public safety and repeating an unsubstantiated claim made by other states that releasing the source of execution drugs would subject the provider to harassment. Judge Norton rejected the state's arguments, finding that revealing the information would not threaten public safety even if execution drugs became unavailable as a result. She said: "If all lethal injection chemicals are unavailable when an execution is scheduled, then such unavailability would not cause an inmate's release from prison. Most states wait for different chemicals to become available while some have adopted alternative forms of execution such as firing squad or electric chair. The court is not aware of any who just release death row inmates into the community." A hearing was held on May 15 in a similar case in Indiana, in which attorney A. Katherine Toomey requested lethal-injection records from the Department of Corrections in 2014. Toomey won a summary judgment in 2016, but the state legislature responded by passing a retroactive secrecy law in 2017, inserting it into a 175-page budget bill after midnight on the final day of the legislative session. The state attorney general's office has claimed that revealing the identities of "individuals who are involved in crafting public policy as it relates to the death penalty ... could subject them to harassment, public shaming and even violence from those who oppose the death penalty." However, Peter Racher, who is representing Toomey in the dispute, said DOC officials indicated during depositions that no one had received threats regarding implementation of the death penalty. Racher called the state's efforts to block the disclosure of execution documents, "insult upon insult to anyone who cares about transparency in government and openness in representative government." If the documents are released, he said, "the Indiana public will know more about one of the most consequential areas of decision making that the state of Indiana engages in.

Pressed on Execution Practices, Nebraska Obstructs Release of Information

As legislators and the media have pressed Nebraska for information on its secretive execution practices, the executive branch has responded—the state's leading newspapers say—with obfuscation and with a lawsuit that has created a state constitutional crisis. After adopting a new execution policy that the Lincoln Journal Star reported "was written in a single draft without input from the governor, attorney general, Corrections director, outside experts or other state officials," the state Department of Correctional Services has drawn harsh criticism and multiple lawsuits for refusing to disclose information about its execution process to lawmakers, the media, advocacy groups, and prisoners. And after the state legislature issued a subpoena that would require Director Scott Frakes (pictured) to testify about the Department's latest efforts to obtain execution drugs and to respond to allegations that it has not complied with federal drug laws on the handling of controlled substances, state Attorney General Doug Peterson sued the legislature to block Frakes from testifying. The Department's most recent refusals to release information—after having lost $54,400 in taxpayer money in a failed attempt to illegally import execution drugs from India—prompted lawsuits from legal advocacy groups, lawmakers, and prisoners demanding protocol transparency. Senator Ernie Chambers, a long-time opponent of capital punishment, filed a formal complaint with the legislature's Executive Board alleging, among other things, that the state's execution protocol violates federal requirements for handling controlled substances and that its refusal to provide information on the lethal-injection drugs violates the Nebraska Public Records Act. In an editorial, the Omaha World-Herald wrote: "The Nebraska news media and members of the Legislature have raised legitimate questions on that score. They’ve asked the state Department of Correctional Services for information involving its purchase of death penalty drugs and its planned procedure for carrying out an execution, to ensure the applicable laws and procedures were all followed. So far, the department has refused to provide answers. Its message, instead, has been: Just trust us. That’s not good enough." A Journal Star editorial criticized executive branch officials for "hypocritically refus[ing]" to subject themselves to public scrutiny. "We don’t know where the state obtained its lethal injection drugs," the editors wrote."We don’t know how the four-drug cocktail was tested. All we have ... is Corrections’ word that they were done in accordance with the law. Given the state’s costly failed attempts to illegally buy execution drugs overseas, that alone is not good enough." The editorial board said accountability means more than just punishing those convicted of murder. "Accountability must also extend to the state officials responsible for implementing and carrying out capital punishment. ... Before Nebraska can hold convicted killers accountable, it first must do so for itself – something it’s shown more interest in obfuscating than pursuing." The Omaha World-Herald encapsulated the issue as follows: "Is the state following the law in all respects regarding the death penalty, or isn’t it? State officials should stop trying to sidestep this central issue. For the sake of the public interest and respect for the law, they need to answer that question in full."

Confidential Settlement Leaves Questions About Alabama Execution Process Unanswered

One month after Alabama called off its two-and-a-half hour attempted execution of Doyle Hamm, the state reached a confidential settlement agreement in which it agreed not to seek another execution date and Hamm's attorney dismissed his client’s pending civil-rights lawsuit. In a March 27, 2018 press release, Columbia University law professor Bernard Harcourt, who has represented Hamm for 28 years, said the settlement was reached “after lengthy, fruitful discussions with the Alabama Attorney General's office.” But the settlement left unanswered numerous questions about what happened during the failed execution and about the state’s secret execution protocol. In response, Alabama’s death-row prisoners filed a motion in their on-going challenge to the state’s execution protocol seeking a federal court order to preserve all evidence from the attempted execution, and several leading media organizations have sought permission to intervene in Hamm’s case to obtain access to information that currently remains sealed. The confidential settlement came after Hamm’s attorney submitted a medical report by a doctor who examined Hamm three days after the failed execution. The report—the only public document describing the circumstances of the execution attempt—indicates that execution personnel unsuccessfully inserted IV needles more than 10 times into Hamm’s feet, legs, and right groin, causing bleeding in his groin, and likely puncturing his bladder, causing blood in his urine. After executioners failed for more than two hours to set an intravenous execution line, Alabama Department of Corrections Commissioner Jeffrey Dunn called off the execution and held a news conference in which he repeatedly asserted the state had followed its execution protocol. “I wouldn’t characterize what we had tonight as a problem,” Dunn said. In the face of conflicting reports about the attempted execution, The Montgomery Advertiser, Alabama Media Group, and The Associated Press filed a motion to intervene in the lawsuit to gain access to sealed documents. “Open government is good goverment,” said Montgomery Advertiser Executive Editor Bro Krift. “There are few things the citizens of Alabama need to know more than how the state is executing someone.” Alabama does not disclose its execution protocol to the public nor does it allow the public to witness the part of the execution in which prison personnel attempt to insert the IV lines. The media's motion argued that, “[w]ithout access to the protocol, it is impossible for the public to understand if the failure was due to a problem inherent in protocol, or to some other cause.” Alabama continues to publicly deny that anything went wrong in its failed attempt to execute Hamm. On March 30, in response to motion to preserve evidence filed in the prisoners’ lawsuit, the Alabama Attorney General blamed the U.S. Supreme Court for the state’s failure to execute Hamm. Prosecutors wrote: “because the Supreme Court prevented Defendants [the Alabama Department of Corrections] from beginning preparations until a mere three hours before the execution warrant was set to expire, time ran out for Defendants and necessitated aborting the execution.” Also on March 30, Chief Judge Karon Owen Bowdre granted the media group's motion to intervene in Hamm’s case, but reserved judgment on whether to unseal the record. “The Press Movants claim an interest in this case because it centers on a ‘matter of intense public interest: the method by which the State of Alabama exercises the power to put people to death,’” Judge Bowdre wrote. “The court agrees.” In allowing the media organizations to intervene, the court found that neither Alabama prosecutors nor Doyle Hamm “adequately represent” the interests of “the public’s right of access to the records.”

Three Controversial Executions Turn Into A Commutation, An Execution, and an Execution Failure

Three states—Alabama, Florida, and Texas—prepared to carry out controversial executions on Thursday, February 22, all scheduled for 7 PM Eastern time, but by the end of the night, two had been halted. Less than an hour before his scheduled execution, and after having said a final good-bye to his anguished father, Texas death-row prisoner Thomas "Bart" Whitaker (pictured, left) learned that Governor Greg Abbott had commuted his death sentence to life in prison. Minutes later, Florida executed Eric Branch (pictured, center), despite undisputed evidence that he had been unconstitutionally sentenced to death. He was pronounced dead at 7:05 p.m. And nearing midnight Central time, two-and-one-half hours after a divided U.S. Supreme Court had given Alabama the go-ahead to execute terminally ill Doyle Hamm (pictured, right) corrections commissioner Jeff Dunn called off the execution saying prison personnel did not have "sufficient time" to find a suitable vein in which to place the intravenous execution line before the death warrant expired. For Texas, it was the first time in more than a decade and only the third time since the death penalty was reinstated in 1976, that any governor had granted clemency to a condemned prisoner. The Texas commutation came after a unanimous recommendation by the parole board, support from the only living victim, Whitaker's father, and various state lawmakers. In explaining his grant of clemency—the first time Gov. Abbott had commuted any death sentence—the Governor cited the fact that Whitaker's codefendant, the triggerperson, did not get the death penalty, the victim "passionately opposed the execution," and Whitaker had waived any possibility of parole and would spend the remainder of his life in prison. The final-hour commutation was relayed to Whitaker in the holding cell next to the death chamber, as he was preparing to be executed. Florida executed Eric Branch despite the fact that a judge sentenced him death after two of his jurors had voted for life and the jury had been told not to record the findings that would make Branch eligible for the death penalty. Both of those practices have now been found unconstitutional. In Hurst v. Florida, decided in 2016, the U.S. Supreme Court reiterated that a capital defendant's right to a jury trial includes the right to have a jury find all facts necessary for the state to impose the death penalty, and later that year, the Florida Supreme Court declared that the Sixth Amendment and the Florida constitution require jury sentencing verdicts to be unanimous. Alabama had been warned that, because of his terminal cancer and prior history of drug use, Doyle Hamm's veins were not accessible and therefore an attempt to execute him via intravenous injection would be cruel and unusual. After the U.S. Supreme Court issued a temporary stay at 6:00pm CT, followed by a full denial of a stay with dissents from Justices Breyer, Ginsburg, and Sotomayor around 9:00pm CT, Alabama started preparing to carry out Hamm's execution. After more than two-and-a-half hours, the state called it off. At a news conference immediately thereafter, Commissioner Dunn repeatedly asserted the state had followed its execution protocol, and said "I wouldn’t characterize what we had tonight as a problem.” Dunn was unable to describe what the state had been doing during the time that Hamm was being prepared for the lethal injection and dismissed questions about failed attempts to set the IV lines saying he was not qualified to answer medical questions. He said he could not tell reporters how long the medical personnel had attempted to establish IV access because "I am not back there with the staff." Alabama keeps its protocol secret, making it impossible to verify the state's assertions. Hamm's attorney Bernard Harcourt, who—like all witnesses—was not permitted to view the IV insertion portion of the execution, speculated that prison personnel could not find a vein and called the process "[s]imply unconscionable." On the morning of February 23, Harcourt filed an emergency motion saying that Hamm had "endured over two-and-a-half hours of attempted venous access" and seeking a hearing to "establish exactly what happened" during that time frame. The federal district court scheduled a hearing on the issue for Monday, February 26.

Missouri Executed 17 Prisoners With Drugs Secretly Obtained From 'High-Risk' Pharmacy Cited for Hazardous Practices

BuzzFeed News investigation has disclosed that Missouri carried out seventeen executions between 2014 and 2017 using supplies of the drug pentobarbital it secretly obtained from a pharmacy the Food and Drug Administration had classified as “high risk” because of repeated serious health violations. The February 20 exposé describes a complex system of clandestine meetings, code names, and undocumented cash payments that Missouri employed to conceal the identity of Foundation Care, a suburban St. Louis compounding pharmacy that reporter Chris McDaniel discovered “has been repeatedly found to engage in hazardous pharmaceutical procedures.” Foundation Care—which was reportedly paid more than $135,000 for execution drugs—is alleged to have engaged in illegal practices, medicare fraud, and numerous manufacturing improprieties and, McDaniel reports, its cofounder has been accused of "regularly ordering prescription medications for himself without a doctor’s prescription.” Two former senior employees of the company—including the head of pharmacy operations—have alleged in a lawsuit that Foundation Care violated government regulations by reselling drugs returned by patients, intentionally omitting the names of ingredients in drugs it prepared, and failing to notify other states about a $300,000 settlement with Kansas over allegations of Medicaid fraud. Another suit by a former employee alleges that she was fired after complaining to her supervisors and the Missouri Board of Pharmacy about “serious operational violations.” Missouri switched to Foundation Care after reporters discovered the identifty of the state's prior secret supplier of execution drugs—an Oklahoma compounding pharmacy called The Apothecary Shoppe. Reporters learned that The Apothecary Shoppe was not licensed to sell drugs in Missouri and had admitted to nearly 2,000 health and safety violations. Foundation Care first came to the attention of FDA investigators after a doctor complained to the agency that a patient he was treating had developed “a 'life threatening' illness” after taking a drug that had been prepared by the pharmacy. At that time, the investigators found that the pharmacy had shipped drugs to patients without conducting tests for sterility and bacteria, and a lab sample revealed drugs that had been contaminated with bacteria. In 2013, the FDA designated Foundation Care as a "high-risk" compounding pharmacy, and cited it as an example as to why greater federal oversight of compounders was necessary. A second inspection of the company that year found “multiple examples” of practices that could lead to contamination, and that Foundation Care had failed to “assure that drug products conform to appropriate standards of identity, strength, quality and purity.” In a February 2014 letter to the Missouri Board of Pharmacy, the FDA warned that the pharmacy’s practices “could lead to contamination of drugs, potentially putting patients at risk.” The possibility of drug contamination is one of the centerpieces of prisoner challenges to Missouri's execution process, and experts in the case have indicated that contamination could create a “substantial risk of pain and suffering.” However, in a deposition in the Missouri prisoners' legal challenge, state officials refused to say whether they were aware of any problems with their drug manufacturer, and lawyers for the state have affirmatively used Missouri's secrecy provisions to deny prisoners' access to information about its drug supplier and the company's safety record, while at the same time arguing the prisoners have not proven that the execution may be unconstitutionally cruel. Foundation Care was acquired by AcariaHealth, a subsidiary of health-care giant Centene Corporation, in October 2017. After McDaniel's report was published, the company issued a statement that, “[u]nder Centene’s ownership, Foundation Care has never supplied, and will never supply any pharmaceutical product to any state for the purpose of effectuating executions.”

Senior U.N. Official Assails Death-Penalty Secrecy As Obstruction of Human Rights

A senior United Nations human rights official has criticized the secrecy with which countries carry out the death penalty and called for greater transparency by countries that still employ capital punishment. "There is far too much secrecy," United Nations Assistant Secretary-General for Human Rights Andrew Gilmour (pictured) said in an interview released November 21 by the U.N. News Centre, "and it’s quite indicative the fact that although many countries are giving up the practice, those that retain it nevertheless feel that they have something to hide." 170 nations have either abolished the death penalty—which U.N. Secretary-General António Guterres has described as a “barbaric practice” that “has no place in the 21st century”—or have not carried out an execution in more than a decade. Many of the governments that continue to execute prisoners have shrouded their death-penalty practices in secrecy, hiding who is on death row and why, how executions are carried out, and—in some countries—how the government has disposed of the executed prisoner's body. Guterres said the practice manifests “a lack of respect” for the human rights of those sentenced to death and "obstructs efforts to safeguard the right to life.” In December 2016, the General Assembly added an anti-secrecy provision to its regular resolution calling for a moratorium on executions, saying that transparency was essential to assess whether countries were administering their death penalty laws in compliance with international human rights standards. In September 2017, the death-penalty moratorium resolution adopted by the U.N. Committee on Human Rights again emphasized the link between transparency and respect for human rights. At an October 2017 event at U.N. Headquarters in New York commemorating World Day Against the Death Penalty, the Secretary-General said "[f]ull and accurate data is vital to policy-makers, civil society and the general public. It is fundamental to the debate around the death penalty and its impact.” Execution secrecy, he said, "undermines that debate." Secrecy has been implicated in recent execution botches and questionable execution practices across the United States, In May 2016, an Oklahoma grand jury found that “paranoia” on the part of prison officials about keeping execution information secret had “caused administrators to blatantly violate their own policies,” contributing to the botched execution of Clayton Lockett, the execution of Charles Warner with an unauthorized execution drug, and the aborted attempt to execute Richard Glossip. In Missouri, prosecutors affirmatively used the state's secrecy provisions to prevent prisoners from obtaining evidence that the out-of-state compounding pharmacy from which the state was illegally obtaining drugs had committed 1,892 violations of pharmacy health and safety regulations. Gilmour singled out for criticism Arkansas’s rush to execute eight prisoners in an eleven-day span in April before its supply of the drug midazolam expired. “I’ve heard various arguments, absurd arguments for executing and some rather obscene arguments for executing,” Gilmour said, “but I don’t really think I’ve heard many more obscene ones or absurd ones than the fact that the drugs for executing had reached their sell-by date.” As part of an international human rights efforts to end the secret trade in lethal-injection drugs, the U.N. Office of the High Commissioner for Human Rights has supported a multi-national initiative called the Alliance for Torture-Free Trade. "I think it’d be a step forward in civilization to block this trade, and luckily there are some major drug companies who are refusing to allow their drugs to be used in instances of execution,” Gilmour said.

Arkansas Supreme Court Orders Partial Disclosure of Information on State's Lethal-Injection Drugs

The Arkansas Supreme Court has ruled that the state's Freedom of Information Act requires the Arkansas Department of Correction (ADC) to release copies of the pharmaceutical drug and packaging labels for the supply of the drug midazolam that it intends to use in upcoming executions, but that the secrecy provisions of the state's Methods of Execution Act permit the department to redact the batch and lot numbers that appear on the labels. The high court's November 2 decision reverses part of an earlier ruling by a Pulaski County Circuit Court that had directed the ADC to disclose the entire packaging labels. The appeals court ruling effectively permits the public and the pharmaceutical industry to identify the company that manufactured the midazolam that Arkansas purchased for the execution of Jack Greene on November 9, but the redaction prevents disclosure of information that could allow the public and the manufacturer to learn the identity of the company or companies that supplied and sold those drugs to the state. The identities of both the manufacturers and suppliers of the drugs used to execute prisoners have been at the center of a continuing controversy in Arkansas, as both drug manufacturers and their distributors have alleged that the state improperly obtained the drugs by misrepresenting the purposes for which they would be used or by breaching contracts between manufacturers and suppliers that prohibit the sale of medicines to state prisons for use in executions. The Arkansas Department of Correction had argued in the litigation that the Methods of Execution Act required that materials that could reveal the identities of the drug manufacturers be kept secret because "[a]bsent such an interpretation, drug manufacturers will continue to be publicly identified in published news reports and will continue to interject themselves into litigation in an effort to halt the State’s use of their drugs for capital punishment." The state supreme court disagreed, saying that when the legislature wrote the MEA, it included specific provisions relating to manufacturers, could have included manufacturers among those identities covered by secrecy provisions, and did not do so. The court said that, instead, the legislature required the ADC to conduct executions with "drugs that are made by an FDA-approved manufacturer," and that withholding the identity of the manufacturer would make it impossible for the public to "verify whether the ADC is complying with that requirement." 

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