Judges in Idaho, Nebraska Order States to Release Execution-Related Records

Judges in Idaho and Nebraska have ordered prison offi­cials to release exe­cu­tion-relat­ed records the states had sought to keep secret. Finding that the Idaho Department of Correction (IDOC) act­ed friv­o­lous­ly and in bad faith in its pri­or response to a pub­lic records request, a state court judge ruled on March 21 that offi­cials at IDOC must release doc­u­ments relat­ed to the state’s death-penal­ty and exe­cu­tion process­es. In Nebraska, a fed­er­al dis­trict court judge ruled on March 15 that the state must pro­vide infor­ma­tion to lawyers rep­re­sent­ing Arkansas death-row pris­on­ers relat­ing to how Nebraska obtained the fen­tanyl used in exe­cut­ing Carey Dean Moore in August 2018.

In the Idaho law­suit, Fourth District Judge Lynn Norton chas­tised IDOC for its bad faith in bare­ly respond­ing to a pub­lic records request for exe­cu­tion-relat­ed doc­u­ments sub­mit­ted by University of Idaho pro­fes­sor Aliza Cover. Judge Norton ruled that the Department must release doc­u­ments that will include the state’s source of exe­cu­tion drugs it used in its last exe­cu­tion and ordered that IDOC pay court and attorney’s fees for Cover.

Cover had sought copies of receipts, pur­chase orders, and oth­er infor­ma­tion relat­ed to the drugs Idaho used in its last two exe­cu­tions in 2011 and 2012 and those it expects to use in future exe­cu­tions. The depart­ment dis­closed only a copy of the state’s exe­cu­tion pol­i­cy man­u­al, claim­ing that the remain­ing doc­u­ments were exempt from pub­lic review. Cover, who stud­ies the death penal­ty and its appli­ca­tion, sued. IDOC redact­ed dozens of items from exe­cu­tion records, includ­ing not only the names of prison staff who par­tic­i­pat­ed in exe­cu­tions, but their hand­writ­ing, and the names of peo­ple only tan­gen­tial­ly involved in exe­cu­tions, such as cler­gy who coun­sel death-row pris­on­ers and hair­dressers who give pris­on­ers their final hair­cuts. The state claimed, with­out evi­dence, that the redac­tions were nec­es­sary to pro­tect those indi­vid­u­als from protest, harass­ment, or vio­lence. Similar claims of threats against exe­cu­tion team mem­bers in oth­er states have been found to be unsub­stan­ti­at­ed. Idaho offi­cials also with­held infor­ma­tion on the source of exe­cu­tion drugs used in the past, claim­ing that sup­pli­ers would no longer pro­vide the drugs if their iden­ti­ties were revealed.

Norton’s rul­ing will force the IDOC to release a receipt for lethal-injec­tion drugs from a com­pound­ing phar­ma­cy that were used in Richard Albert Leavitt’s 2012 exe­cu­tion, the most recent exe­cu­tion in Idaho. IDOC will be able to with­hold infor­ma­tion about the drugs from Paul Ezra Rhoades’s 2011 lethal-injec­tion exe­cu­tion because the source may still be sup­ply­ing drugs used in lethal injections.

In the Nebraska case, U.S. District Court Senior Judge Laurie Smith Camp gave the Nebraska Department of Correctional Services until April 12 to turn over doc­u­ments detail­ing its efforts to obtain its exe­cu­tion drugs, but allowed the state to redact infor­ma­tion con­cern­ing the iden­ti­ty of the phar­ma­cy that sup­plied the drugs because the com­pa­ny had ​“made a busi­ness deci­sion to decline any future sales of chem­i­cals to any state, includ­ing Nebraska.” Arkansas pris­on­ers who are chal­leng­ing that state’s use of the drug mida­zo­lam in exe­cu­tions were seek­ing the infor­ma­tion to meet the oblig­a­tion imposed by the U.S. Supreme Court that they prove that an alter­na­tive drug was avail­able. The court required Nebraska to dis­close records relat­ed to how the state iden­ti­fied the phar­ma­cy and per­suad­ed it to sup­ply fen­tanyl to Nebraska.

Many states attempt to shroud their exe­cu­tion process­es and prac­tices in secre­cy. ​“When the state keeps secret basic infor­ma­tion about the death penal­ty, the pub­lic can­not ensure that it is car­ried out humane­ly or con­sti­tu­tion­al­ly,” Cover said.

(Rebecca Boone, Judge: Idaho must reveal past source of exe­cu­tion drugs, Associated Press, March 22, 2019; Lori Pilger, Judge says Nebraska must pro­vide infor­ma­tion to attor­neys for Arkansas death-row inmates, Lincoln Journal Star, March 15, 2019 ) See Secrecy. Read the Death Penalty Information Center’s report Behind the Curtain: Secrecy and the Death Penalty in the United States.