Execution Secrecy Bill Passes in Florida, Fails in Idaho

Bills to increase secre­cy in the con­duct of exe­cu­tions have met dif­fer­ent fates in Florida and Idaho. Florida leg­is­la­tors on March 7, 2022 gave final leg­isla­tive approval to a bill that would con­ceal the iden­ti­ty of exe­cu­tion par­tic­i­pants, includ­ing sup­pli­ers of exe­cu­tion drugs. Meanwhile, a sim­i­lar mea­sure in Idaho passed the House of Representatives but failed on a tie vote in a Senate com­mit­tee on March 9.

Supporters of the secre­cy bills have assert­ed, with­out evi­dence, that they are nec­es­sary to pro­tect drug sup­pli­ers from per­ceived harass­ment or intim­i­da­tion. Opponents argue that the secre­cy bills are actu­al­ly designed to pre­vent drug com­pa­nies from learn­ing whether their med­i­cines have been obtained in vio­la­tion of their dis­tri­b­u­tion poli­cies and are being mis­used to exe­cute pris­on­ers. They also argue that secre­cy pro­vi­sions impair pub­lic over­sight of death-penal­ty prac­tices and pre­vent the pub­lic from hold­ing states account­able for botched exe­cu­tions and mis­con­duct in obtain­ing exe­cu­tion drugs. The bills faced sig­nif­i­cant oppo­si­tion from civ­il lib­er­ties groups, free speech and media orga­ni­za­tions, and defense attorneys.

In Florida, two com­pan­ion secre­cy bills—House Bill 873 and Senate Bill 1204—unan­i­mous­ly passed the crim­i­nal jus­tice com­mit­tees in the house and sen­ate. These iden­ti­cal bills would exempt the Department of Corrections from hav­ing to dis­close to the pub­lic the com­pa­nies that pro­vide the drugs used in lethal injec­tion as well as the peo­ple who admin­is­ter the drugs dur­ing the exe­cu­tion. HB 873 passed the House by a vote of 84 – 31 on March 3, 2022 then moved to the Senate, where it passed by a 28 – 10 vote on March 7. It now moves to the governor. 

By con­trast, the Idaho bill, HB 658, passed the Idaho House of Representatives on February 24, 2022, by a 38 – 30‑2 vote before fail­ing on a 4 – 4 vote in the Senate Judiciary and Rules Committee on March 9. The bill would have con­cealed from the pub­lic the iden­ti­ty of any com­pa­ny that pro­vides med­ical sup­plies or ​“com­pounds, syn­the­sizes, tests, sells, sup­plies, man­u­fac­tures, stores, trans­ports, pro­cures, dis­pens­es, or pre­scribes chem­i­cals or sub­stances” for use in exe­cu­tions and barred the dis­cov­ery and use of that infor­ma­tion in court pro­ceed­ings. The bill also pro­vid­ed assur­ances of anonymi­ty for med­ical staff and escort teams involved in exe­cu­tions and insu­lat­ed med­ical pro­fes­sion­als from any dis­ci­pli­nary action that might oth­er­wise result from their par­tic­i­pa­tion in executions.

In Idaho, bill spon­sor Rep. Greg Chaney (R‑Caldwell) said ​“con­fi­den­tial­i­ty” is nec­es­sary to pro­tect the prac­tice of exe­cu­tions. He said, with­out con­fi­den­tial­i­ty, death penal­ty oppo­nents will ​“name and shame” any com­pa­ny will­ing to sell drugs until the com­pa­nies are no longer will­ing to pro­vide execution drugs. 

“As a func­tion­al mat­ter, a ​‘no’ vote on this ends the death penal­ty in Idaho; only fir­ing squad and lethal injec­tion are in our con­sti­tu­tion as appro­pri­ate means of exe­cu­tion,” Chaney said, accord­ing to the Idaho Capital Sun.

Echoing this argu­ment, the Florida Department of Corrections, in its bill analy­sis, assert­ed that secre­cy pro­tects com­pa­nies from ​“poten­tial harass­ment, intim­i­da­tion or harm” from activists against the death penal­ty. Florida Rep. Mike Beltran (R‑Lithia) said con­fi­den­tial­i­ty is need­ed to make com­pa­nies will­ing to sell the drugs to the state. 

“I am not say­ing we need to have a death penal­ty or not. But if we are going to have a death penal­ty, we should be able to admin­is­ter it with accor­dance to the con­sti­tu­tion,” Beltran said, accord­ing to Tampa Bay’s Fox-13. 

At a hear­ing on the Idaho bill, leg­is­la­tors heard oppo­si­tion from the American Civil Liberties Union, the Idaho Press Club, and a retired judge who had reviewed the last two exe­cu­tions in the state. Retired U.S. Magistrate Judge Ron Bush tes­ti­fied about his expe­ri­ence pre­sid­ing over the case of Paul Ezra Rhoades, who chal­lenged Idaho’s exe­cu­tion pro­to­col before his 2011 exe­cu­tion. Bush said the Department of Correction with­held infor­ma­tion about exe­cu­tion drugs ​“even though they were well aware that I was con­cerned about the hasty man­ner in which the state was going about this exe­cu­tion.” Judge Bush learned years lat­er that the state had paid cash to a phar­ma­cist in Salta Lake City to pur­chase exe­cu­tion drugs on the very day he was hold­ing a hear­ing in Rhoades’ case. ​“I don’t know if that infor­ma­tion would have caused me to think dif­fer­ent­ly than I did, but it cer­tain­ly would have been some­thing I would have looked at care­ful­ly,” Bush said.

As in Idaho, a broad coali­tion of orga­ni­za­tions opposed the Florida bill, includ­ing the Florida First Amendment Project, the Florida Catholic Conference of Bishops, and the Tampa Bay Times edi­to­r­i­al board. The Tampa Bay Times edi­to­r­i­al board argued that trans­paren­cy is even more impor­tant around exe­cu­tion prac­tices in light of recent cas­es of botched exe­cu­tions. ​“Why would Florida seek to become a de fac­to part of a drug man­u­fac­tur­ers’ risk man­age­ment arm?” reads the edi­to­r­i­al. ​“It’s not like exe­cu­tions always run smooth­ly. Florida has had sev­er­al con­tro­ver­sial ones where inmates appear to be in severe pain or at least take much longer to die than expect­ed. In October, Oklahoma’s first exe­cu­tion since sev­er­al flawed pro­ce­dures years ear­li­er, left the inmate con­vuls­ing and vomiting unexpectedly.”

DPIC’s 2018 report, Behind the Curtain, exam­ined the use of secre­cy to hide prob­lems and ques­tion­able prac­tices in exe­cu­tions. Secrecy laws and poli­cies have allowed states to cov­er up the use of unsafe sup­pli­ers for exe­cu­tion drugs. For exam­ple, a Tulsa phar­ma­cy that pro­vid­ed drugs in secret to Missouri was found to have com­mit­ted ​“sig­nif­i­cant” vio­la­tions of phar­ma­cy reg­u­la­tions, includ­ing improp­er dis­in­fec­tion and ster­il­iza­tion prac­tices. Major phar­ma­ceu­ti­cal com­pa­nies, such as Pfizer and Johnson & Johnson, have opposed the use of their prod­ucts in exe­cu­tions. Hikma Pharmaceuticals sent the state of Nevada a cease-and-desist let­ter threat­en­ing to sue the state for ille­gal­ly obtain­ing ket­a­mine pro­duced by Hikma. Nevada’s sup­ply of ket­a­mine expired in February of 2022, at least tem­porar­i­ly thwart­ing the state’s attempt to exe­cute Zane Floyd.