Secrecy

Texas Court Hears Argument in State's Appeal of Drug Secrecy Ruling

Texas' Third Court of Appeals heard oral argument on May 11 on the state's appeal of a trial court ruling requiring it to reveal the identity of its lethal injection drug supplier in a pair of April 2014 executions. The suit, initially brought on behalf of the two executed prisoners, now implicates Texas' Public Information Act. The prisoners' attorneys argued that identifying the supplier of pentobarbital, the drug used by Texas in executions, was necessary to verify that the chemicals had been prepared correctly and would not cause an unconstitutionally painful execution. Then-Attorney General (now Texas Governor) Greg Abbott said that releasing the drug supplier's identity would present a threat of physical harm, because a previous drug supplier had received hate mail and threats after being identified. In December 2014, District Judge Darlene Byrne rejected Abbott's argument and ordered Texas to disclose the identity of the compounding pharmacy that had prepared the drug. The state appealed that decision. In Wednesday's hearing, defense lawyers characterized the alleged threats as "vague" and nonspecific and said they were no basis to bar public disclosure of the information. Prosecutors, without identifying the source of any threat, argued that the safety of the pharmacy was at risk because, "There's an identifiable group of people who think lethal injection is wrong—morally, politically and socially—and they are determined to oppose it." Chief Justice Jeff Rose raised concerns about the implications of allowing a broad exemption to the Public Information Act, asking, "Where do we draw the line … without blowing a hole in the (Public Information Act) big enough to drive a truck through anytime the government says, 'Well, gee, this can cause harm?'" Justice Bob Pemberton said, "It seems a potentially boundless exemption." The scope of the decision is likely to be limited, because the Texas legislature passed a law shielding execution drug suppliers, which took effect in September 2015.

Missouri Execution Drug Supplier Being Sold After Committing Nearly 2,000 Violations of Pharmacy Regulations

The assets of The Apothecary Shoppe, a Tulsa, Oklahoma compounding pharmacy that provided lethal injection drugs to Missouri, have been auctioned off after the company defaulted on its loans, and is being sold after admitting to nearly two thousand violations of pharmacy regulations, according to a report by BuzzFeed News. Inspectors from the federal Food and Drug Administration and the Oklahoma Board of Pharmacy found that the drug compounder had committed "significant" violations of pharmacy regulations, including engaging in questionable potency, disinfecting, and sterilization practices. State investigators witnessed improper refrigeration, storage, and sterilization practices at the pharmacy and caught the company producing drugs without legitimate medical need, improperly expanding drug expiration dates, and operating during periods in which its lab was not certified. In 2013 and 2014, the pharmacy prepared execution drugs for at least three Missouri executions, receiving cash payments from the Department of Corrections. In challenges to Missouri's lethal injection practices, death-row prisoners – hampered by state execution secrecy provisions – argued in court that “Compounding-pharmacy products do not meet the requirements for identity, purity, potency, efficacy, and safety that pharmaceuticals produced under FDA regulation must meet.” Among the possibilities they listed, were that the drug may not be sterile, may be less potent than it needs to be, or may be contaminated. Missouri responded in its court filings that the condemned prisoners' concerns were speculative and that the inmates did "not make a plausible claim that Missouri’s execution procedure is sure or very likely to cause serious illness or needless suffering and give rise to sufficiently imminent dangers.” The problems found at The Apothecary Shoppe confirmed the prisoners' concerns. 

Oklahoma Knew It Had Used Unauthorized Drug Months Before It Aborted Richard Glossip's Execution

The Oklahoma Department of Corrections knew it had used an unauthorized drug in the execution of Charles Warner nearly six months before it almost repeated the mistake in the aborted execution of Richard Glossip. Oklahoma executed Warner on January 15, 2015. Documents obtained by BuzzFeed News reveal that three months later, in April, the state medical examiner submitted a report to the Department on Warner's autopsy, showing that he had been executed using potassium acetate, in violation of the state's lethal injection protocol which required the use of potassium chloride. The Department apparently received the report in advance of the April 29, 2015 Supreme Court argument in Glossip v. Gross, in which Oklahoma death row prisoners challenged the constitutionality of the use of the drug, midazolam, the first component of the state's three-drug execution process. Oklahoma had represented to the federal courts throughout those proceedings that it was complying with its protocol, and the Supreme Court narrowly upheld Oklahoma's protocol on June 29. Glossip's execution was scheduled for September 30, but was halted at the last minute after the doctor overseeing the execution noticed that the state had again obtained potassium acetate instead of potassium chloride. Emails suggest that the Oklahoma Attorney General's office may already have known about the execution problems before their recurrence in Glossip's case, because they sought details about Warner's execution from the medical examiner in early September. Shortly after Glossip's execution was stayed, The Oklahoman reported that the state had used the wrong drug in Warner's execution. Oklahoma Attorney General Scott Pruitt launched a grand jury investigation into the protocol violations in October. Since the grand jury investigation began, two correctional officials and the governor's general counsel have resigned. The grand jury could release their report as early as this week.

Virginia Governor Rejects Mandatory Use of Electric Chair, Proposes Lethal Injection Secrecy

Virginia Governor Terry McAuliffe rejected a bill that would have employed the electric chair as the state's method of execution if lethal injection drugs are unavailable. Instead, he offered amendments that would permit the Commonwealth's Department of Corrections to enter into confidential contracts to obtain execution drugs from compounding pharmacies, whose identities would be concealed from the public. His proposal is similar to legislation he backed last year that failed because of concerns about its secrecy provisions. McAuliffe's amendments will go before the Virginia legislature during their veto session, which begins April 20. Under Virginia law, the legislature may accept the amendments by a simple majority vote or override the governor's action again passing the unamended original bill by a two-thirds vote in both Houses of the legislature. If there is insufficient support for either option, the original bill returns to the Governor where he can veto it, sign it, or allow it to become law without his signature. Many states have adopted secrecy policies as they seek alternative sources of lethal injection drugs, but a Missouri judge recently ordered that state to reveal the sources of its execution drugs. The amendment proposed by Gov. McAuliffe states that pharmacies' identifying information, "shall be confidential, shall be exempt from the Freedom of Information Act . . . and shall not be subject to discovery or introduction as evidence in any civil proceeding unless good cause is shown." Virginia law currently directs condemned prisoners to choose between lethal injection and the electric chair, but the bill as initially approved by the legislature would have given the state authority to use the electric chair if lethal injection drugs were deemed to be unavailable, even if the prisoner had selected lethal injection.

Amidst Nebraska Execution-Secrecy Controversy, California Judge Lets Execution-Access Lawsuit Proceed

As lawyers for Nevada told their state supreme court that a controversial Nebraska execution had been carried out without problems, a federal judge issued a ruling allowing a lawsuit to proceed that would force California to allow media witnesses to observe executions in that state in their entirety. The developments in the cases in the two states highlight an ongoing controversy over the lack of transparency and accountability in recent lethal-injection executions. Attorneys representing the Nevada Department of Corrections said in a court filing on August 16, 2018 that media witnesses to Nebraska's four-drug execution of Carey Dean Moore, which used three of the drugs Nevada plans to use to execute Scott Dozier, "reported no complications, only some coughing before Moore stopped moving." They failed to report to the court that the witnesses did not see when the lethal-injection chemicals had been administered or what lethal-injection expert, Fordham Law Professor Deborah Denno, called "[t]he parts of the execution that would be most problematic" - when the IV lines are set and the period after the final drug is administered. Those occurred behind drawn curtains. Contrary to what Nevada's lawyers told the court, the Lincoln Journal-Herald, compiling witness observations to the execution, wrote: "Nebraska witnesses actually reported Moore coughed, his diaphragm and abdomen heaved, he went still, then his face and fingers gradually turned red and then purple, and his eyes cracked open slightly. One witness described his breathing as shallow, then deeper, then labored." Nebraska College of Law Professor Eric Berger, who studies the death penalty, called the eyewitness reports "somewhat troubling." He said, "It's certainly possible that everything went smoothly and humanely, but it's also possible that it didn't ... We just don’t have enough information to make that determination." Similar concerns with the ability of the public to view potentially problematic executions animated the federal court's ruling on the California execution process. Noting that the public has a First Amendment right to “view executions from the moment the condemned is escorted to the execution chamber," federal district court judge Richard Seeborg denied a motion filed by lawyers for the California Department of Corrections seeking to dismiss a lawsuit challenging administrative rules that bar the public from viewing the preparation and injection of lethal drugs and to keep the curtain open through the completion of the execution process. Christopher S. Sun, who represented media plaintiffs The Los Angeles Times, KQED, and the San Francisco Progressive Media Center, called public access to executions "critical to informing our national dialogue about the death penalty" and said the suit was filed to ensure that the public knows what actually happens during an execution. Sun said current California state regulations afford execution personnel discretion during the execution to draw the curtain on the window through which witnesses see the execution and require the curtain to be closed and the public address system turned off if three doses of the lethal-injection drugs fail to kill the prisoner, denying important information to the public in a matter of heightened public interest. In allowing the suit to proceed, the court said the media had made a threshold showing that it was entitled to observe prison personnel "preparing the chemicals[,] ... the process of administering the chemicals," the entire execution itself, and "the administration of medical care ... in the Lethal Injection Room" in the event of a failed or botched execution. The California lawsuit is not the first of its kind. In 2016, an Arizona federal court ruled that the First Amendment affords the public the right to view executions in that state in their totality.

Tennessee Executes Billy Ray Irick in First Execution Since 2009

Over sharp dissents by justices of the U.S. and Tennessee Supreme Courts and lingering questions about the prisoner's history of mental illness and the efficacy of the state's lethal-injection protocol, Tennessee executed Billy Ray Irick (pictured) on August 9. He was the first person executed by the state since 2009. Justice Sonia Sotomayor described the process as a "rush to execute" and a descent into "barbarism." In the days leading up to the execution, the Tennessee Supreme Court and Tennessee Governor Bill Haslam rejected Irick's request for a stay or clemency. The state Supreme Court ruled on August 6 that Irick had failed to show his challenge to the execution protocol was likely to succeed on appeal, a requirement for the court to allow the lawsuit to proceed. Judge Sharon Lee dissented from the majority decision, writing, "The harm to Mr. Irick of an unconstitutional execution is irreparable. Yet the harm to the State from briefly delaying the execution until after appellate review is minimal, if any." Governor Bill Haslam declined to exercise his clemency power in Irick's case, saying that the judicial review of the case was "extremely thorough." Gene Shiles, Irick's attorney disagreed: "The truth is no facts relating to Billy’s state mind at the time of the offenses — including his hallucinations and talking to 'the devil' were ever considered by a single court on the merits. These facts, the most important to reasoned decisions as to guilt and punishment, were instead 'defaulted' and never weighed because they were determined to be untimely — raised too long after the trial." The U.S. Supreme Court denied a stay, but Justice Sonia Sotomayor strongly dissented from that denial, writing, "In refusing to grant Irick a stay, the Court today turns a blind eye to a proven likelihood that the State of Tennessee is on the verge of inflicting several minutes of torturous pain on an inmate in its custody, while shrouding his suffering behind a veneer of paralysis. I cannot in good conscience join in this 'rush to execute' without first seeking every assurance that our precedent permits such a result. If the law permits this execution to go forward in spite of the horrific final minutes that Irick may well experience, then we have stopped being a civilized nation and accepted barbarism." The Tennessean reported that Irick's execution was "certain to fuel a fierce national debate surrounding the drugs used to kill him, and if they amount to state-sanctioned torture." Federal public defender Kelley Henry said Irick exhibited signs of pulmonary edema during an execution that took more than twenty minutes. Henry said media witnesses had reported that “Mr. Irick ‘gulped for an extended period of time,’ was ‘choking,’ ‘gasping,’ ‘coughing,’ and that ‘his stomach was moving up and down.’ Witnesses described movement, including movement of the head, after the consciousness check. This means that the second and third drugs were administered even though Mr. Irick was not unconscious,” Henry said. Media reports indicated that the second and third drugs, a paralytic agent and potassium chloride, would cause a pain similar to drowning and being burned alive. 

Arizona Lethal Injection Challenge Proceeds As State Refuses to Rule Out Future Use of Controversial Execution Drug

A federal judge has rebuffed an attempt by Arizona to dismiss a lawsuit filed by the state's death row prisoners challenging the state's execution practices. The state argued at a hearing in the case in U.S. District Court on June 29, that the prisoners' lawsuit should be declared moot because Arizona's supply of midazolam—the first drug in one of the state's four execution protocols—had expired and that the state has been unable to obtain a new supply of that drug and other potential execution drugs from pharmaceutical manufacturers. However, defense lawyers argued that the state's announcement last week that it would drop midazolam from its execution protocol did not make the lawsuit moot because Arizona prison officials "could change their minds next week or next month.” And when pressed by Judge Neil Wake as to whether the Arizona Department of Corrections might use midazolam in the future if the drug became available, the state's lawyers said Arizona "will not commit to never using midazolam again.” The prisoners are also challenging Arizona's contention that the Corrections Director has unlimited discretion to make changes to the state's execution protocol. The prisoners argue that the state has abused that discretion to make last-minute changes in the execution protocol, preventing condemned prisoners from learning the details of the execution protocol until after a death warrant has been issued. This, in combination with secrecy provisions that conceal information about the source and quality of the drugs to be used in executions, has artificially limited the court's ability to address the legal challenges to Arizona's execution practices and resulted in what Judge Wake has characterized as "crisis litigation." In the past, Judge Wake had permitted executions to go forward in those circumstances—including the botched two-hour execution of Joseph Wood. However, he said that he would now consider staying future executions if necessary to ensure "prompt and orderly litigation." The state's executions remain on hold as the lawsuit continues.

Oklahoma Grand Jury Issues Report Detailing "Blatant Violations" of the State's Execution Protocol

Following seven months of investigation into the causes of Oklahoma's botched execution of Charles Warner using an unauthorized execution drug and its near-execution of Richard Glossip with the same wrong drug, an Oklahoma grand jury issued a report on May 19 identifying a wide range of what it characterized as "negligent," "careless," and in some instances "reckless" conduct by state officials that deviated from the state's execution protocol. The state's three-drug execution protocol called for the use of potassium chloride as the final drug to stop the prisoner's heart, but instead the state obtained the unauthorized drug, potassium acetate. The grand jury described a litany of errors or improprieties at virtually every stage of the execution process by virtually everyone who participated in the process. It found that Robert Patton, who subsequently retired from his position as Director of the Department of Corrections had "orally modified the execution protocol without authority"; the anonymous pharmacist selected by the state had "ordered the wrong execution drugs"; the DoC's General Counsel "failed to inventory the execution drugs" upon recept from the pharmacist; the agent of the DoC's Office of Inspector General "failed to inspect the execution drugs while transporting them"; Warden Anita Trammell, who oversaw the prison where the executions occurred and also retired in the wake of the execution scandal,"failed to notify anyone in the [DoC] that [the wrong drug] had been received"; other prison administrators and members of the execution IV team "failed to observe the Department had received the wrong drugs"; and that the Governor's former General Counsel, Steve Mullins, "advocated the Department proceed with the Glossip execution using potassium acetate" even though he knew its use was not authorized by the execution protocol. Mullins insisted that the drug was interchangeable with potassium chloride, telling the assistant attorney general to "Google it."  “It is unacceptable for the Governor’s General Counsel to so flippantly and recklessly disregard the written Protocol and the rights of Richard Glossip,” the grand jury wrote. “Given the gravity of the death penalty, as well as the national scrutiny following the [botched Clayton] Lockett execution, the Governor’s Counsel should have been unwilling to take such chances.” The grand jury also found that the judgment of prison officials throughout the process was "clouded" by the "paranoia" of keeping execution information secret, "caus[ing] administrators to blatantly violate their own policies."

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