The exe­cu­tion process in Indiana and Missouri may become more trans­par­ent as a result of pub­lic-access law­suits filed in the two states. In Indiana, a Marion County tri­al judge ruled on November 30, 2018 that the state must release pre-2017 records con­cern­ing the drugs obtained by the state for exe­cu­tions and the com­pa­nies that pro­duced them. Three days ear­li­er, the ACLU of Missouri announced the set­tle­ment of a law­suit filed on behalf of inves­tiga­tive jour­nal­ist Chris McDaniel that ensured that the Missouri Department of Corrections could no longer retal­i­ate against reporters or news out­lets by exclud­ing them from witnessing executions.

The Indiana rul­ing came in a pub­lic records suit brought by a lawyer, A. Katherine Toomey, in which Circuit Court Judge Sheryl Lynch had pre­vi­ous­ly ordered the state to dis­close doc­u­ments on the details of Indiana’s exe­cu­tion pro­to­col. To evade com­pli­ance with the court’s 2016 order, at 2 a.m. on the final day of the 2017 leg­isla­tive ses­sion, the leg­is­la­ture insert­ed a two-page secre­cy pro­vi­sion into the state 175-page bud­get bill. That pro­vi­sion exempt­ed the records Toomey had sought from pub­lic dis­clo­sure. David Dickmeyer, argu­ing on behalf of the state, told Judge Lynch that the new law con­sti­tut­ed a ​“spe­cial cir­cum­stance” requir­ing the court to change her pri­or rul­ing. The secre­cy pro­vi­sion was nec­es­sary, he assert­ed, because releas­ing the records would sub­ject the state’s drug sup­pli­er to ​“pub­lic sham­ing, pub­lic protests, hate mail and law­suits.” Judge Lynch dis­agreed, writ­ing, ​“The General Assembly may not change the result of [the pub­lic records] lit­i­ga­tion. While oth­er requests may be pre­clud­ed by the Statute, block­ing Toomey’s request after this Court had already ordered the Department to pro­duce the doc­u­ments vio­lates … Indiana’s Constitution.”

The Missouri lit­i­ga­tion chal­lenged the state’s pro­ce­dure for des­ig­nat­ing exe­cu­tion wit­ness­es, which grant­ed the direc­tor of the Department of Corrections sole dis­cre­tion to select media wit­ness­es. McDaniel — who as a reporter for St. Louis Public Radio and then BuzzFeed News had exposed ques­tion­able con­duct by the Missouri Department of Corrections and report­ed that the state’s pre­vi­ous­ly secret drug sup­pli­er had com­mit­ted more than 1,800 health and safe­ty vio­la­tions—had applied to be a media wit­ness for 17 exe­cu­tions. The cor­rec­tions depart­ment ignored the appli­ca­tions and pro­vid­ed no rea­son for refus­ing to select McDaniel as a wit­ness. In announc­ing the set­tle­ment, the ACLU of Missouri, which rep­re­sent­ed McDaniel, said: ​“The gov­ern­ment can­not give or deny access to a reporter based on gov­ern­ment offi­cials’ feel­ings about an individual’s report­ing.” Under the set­tle­ment, media wit­ness­es will now include reporters des­ig­nat­ed by the Associated Press, the Missouri Broadcaster’s Association, and the Missouri Press Association, along with a fourth reporter from a local agency. ​“Executing inmates is the most seri­ous pow­er state gov­ern­ments have,” said McDaniel. ​“And the pub­lic has a right to know the details of how the gov­ern­ment is using that power.”

An op-ed by Los Angeles Times opin­ion writer Scott Martelle took issue with the secre­cy sur­round­ing recent U.S. exe­cu­tions. ​“Secrecy advo­cates argue that the drug­mak­ers must remain in the shad­ows to keep oppo­nents of the death penal­ty from protest­ing them,” wrote Martelle. ​“In oth­er words, if the states can’t con­duct the people’s busi­ness in secret, the peo­ple might rise in oppo­si­tion to the busi­ness the state is con­duct­ing. So much for open gov­ern­ments and pub­lic account­abil­i­ty.” The op-ed cit­ed McDaniel’s inves­ti­ga­tion of the safe­ty vio­la­tions com­mit­ted by the com­pound­ing phar­ma­cy that pro­duces Texas’s lethal-injec­tion drugs and DPIC’s report on secre­cy, Behind the Curtain: Secrecy and the Death Penalty in the United States. ​“Remember, exe­cu­tions are con­duct­ed in the name of the peo­ple, who have a right to know how the state per­forms the abom­inable act. This retreat into secre­cy is an act of shame, not open­ness,” Martelle wrote.

(Mark Alesia, Judge smacks leg­is­la­ture, says retroac­tive law does­n’t pre­vent release of death penal­ty records, Indianapolis Star, November 30, 2018; ACLU of Missouri, MISSOURI DEPARTMENT OF CORRECTIONS CHANGES POLICY FOR WITNESSING EXECUTIONS, November 27, 2018; Missouri Department of Corrections, Department Procedural Manual, Execution Witnesses, November 15, 2018; Scott Martelle, There’s a shame­ful veil of secre­cy sur­round­ing state exe­cu­tions, Los Angeles Times, December 5, 2018.) See Lethal Injection and Secrecy.

Citation Guide