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.

Indianapolis-based phar­ma­ceu­ti­cal man­u­fac­tur­er Eli Lilly and Co. said U.S. phar­ma­ceu­ti­cal com­pa­nies pro­duce med­i­cines to save lives, not to exe­cute pris­on­ers. In a state­ment, the com­pa­ny said: ​“We don’t make or dis­trib­ute any drugs used in lethal injections.”