In light of the three botched exe­cu­tions that took place in 2014, the Washington Post pub­lished an edi­to­r­i­al urg­ing states not to drop ​“a veil of secre­cy over exe­cu­tions.” In par­tic­u­lar, the edi­to­r­i­al board oppos­es a pro­posed law in Virginia, which, ​“would make prac­ti­cal­ly every­thing about exe­cu­tions in Virginia a state secret — even the build­ing in which they take place. ” ​“It’s hard to see the com­pelling need for that kind of bla­tant cen­sor­ship, which in oth­er states has been chal­lenged by death row inmates, civ­il lib­er­ties groups and media out­lets as an infringe­ment on the First Amendment,” the edi­to­r­i­al said. ​“Depriving the pub­lic of infor­ma­tion on the dark side of cap­i­tal pun­ish­ment, and impov­er­ish­ing the pub­lic debate, will not make botched exe­cu­tions any more palat­able.” It calls such laws con­sti­tu­tion­al­ly sus­pect, adding, ​“The fact that such mishaps might arouse pub­lic dis­gust does not jus­ti­fy grant­i­ng anonymi­ty to drug com­pa­nies that enter into gov­ern­ment con­tracts. If it did, states might con­clude that any unpleas­ant news, and the result­ing incon­ve­nient pub­lic reac­tion, would occa­sion sus­pend­ing the First Amendment.” Read the editorial below.

After botched executions, states add secrecy to the lethal injection process

AT LEAST three hor­rif­i­cal­ly botched exe­cu­tions last year — in Ohio, Oklahoma, and Arizona — height­ened pub­lic alarm and revul­sion at the risk of cru­el and unusu­al meth­ods of cap­i­tal pun­ish­ment. Short of abol­ish­ing the death penal­ty, the solu­tion for states is to seek and ensure more humane meth­ods. Instead, some are tak­ing a sneaki­er, and con­sti­tu­tion­al­ly more sus­pect, route: drop­ping a veil of secre­cy over executions.

The most recent exam­ple, and one of the most obnox­ious, is leg­is­la­tionpassed in a lame-duck ses­sion of Ohio’s leg­is­la­ture last month fol­low­ing the shock­ing­ly bun­gled exe­cu­tion a year ago of Dennis McGuire, a con­vict­ed mur­der­er who choked, gasped and writhed for 26 min­utes before succumbing.

The law, signed just before Christmas by Gov. John Kasich (R), offers anonymi­ty to com­pound­ing phar­ma­cies that agree to man­u­fac­ture the drugs used in state exe­cu­tions, as well as to oth­ers involved in car­ry­ing out exe­cu­tions. The bill would shield the iden­ti­ty of and pub­lic records per­tain­ing to oth­er med­ical and non-med­ical per­son­nel who fur­nish sup­plies or admin­is­ter the drugs used in executions.

The effect is to impose a gag order on poten­tial­ly adverse reports that could inform the pub­lic debate over cap­i­tal pun­ish­ment. By mak­ing much rel­e­vant infor­ma­tion secret, the law gives gov­ern­ment account­abil­i­ty a black eye.

More than a dozen states have adopt­ed sim­i­lar laws and poli­cies, and oth­ers are con­sid­er­ing mea­sures that are wildly overbroad.

A notable case is Virginia, where Gov. Terry McAuliffe’s (D) admin­is­tra­tion has sub­mit­ted a bill to the leg­is­la­ture that goes well beyond the Ohio law. The leg­is­la­tion, spon­sored by Senate Minority Leader Richard L. Saslaw (D‑Fairfax), would make prac­ti­cal­ly every­thing about exe­cu­tions in Virginia a state secret — even the build­ing in which they take place. The infor­ma­tion would be exempt from the state’s Freedom of Information Act and even off-lim­its to plain­tiffs in most civil lawsuits.

It’s hard to see the com­pelling need for that kind of bla­tant cen­sor­ship, which in oth­er states has been chal­lenged by death row inmates, civ­il lib­er­ties groups and media out­lets as an infringe­ment on the First Amendment. Depriving the pub­lic of infor­ma­tion on the dark side of cap­i­tal pun­ish­ment, and impov­er­ish­ing the pub­lic debate, will not make botched exe­cu­tions any more palatable.

Taxpayers who pro­vide the funds that pay for the drugs used in lethal injec­tions deserve to know when mishaps occur. The fact that such mishaps might arouse pub­lic dis­gust does not jus­ti­fy grant­i­ng anonymi­ty to drug com­pa­nies that enter into gov­ern­ment con­tracts. If it did, states might con­clude that any unpleas­ant news, and the result­ing incon­ve­nient pub­lic reac­tion, would occa­sion sus­pend­ing the First Amendment.

The death penal­ty has been on a long and steady decline in America, with few­er states using it and those that retain it exe­cut­ing and con­demn­ing to death ever few­er pris­on­ers. The fact that this trend has been impelled large­ly by pub­lic opin­ion is no excuse for shroud­ing ever-rar­er exe­cu­tions under a cone of silence.

(Editorial, ​“After botched exe­cu­tions, states add secre­cy to the lethal injec­tion process,” Washington Post, January 28, 2015.) See Editorials and Lethal Injection.