Media and Legal Organizations Urge Idaho Supreme Court to Require Execution Transparency

Saying that states have ​“no com­pelling need” to keep exe­cu­tion infor­ma­tion secret, the American Bar Association (ABA) has asked the Idaho Supreme Court to require the state to dis­close numer­ous exe­cu­tion-relat­ed doc­u­ments under Idaho’s free­dom of infor­ma­tion law. On February 28, 2020, the ABA and a coali­tion of Idaho media orga­ni­za­tions led by the Idaho Press Club filed ami­cus curi­ae briefs in Cover v. Idaho Board of Correction in sup­port of an Idaho law professor’s law­suit seek­ing release of pub­lic records on Idaho’s execution procedures. 

In 2017, Aliza Cover, a law pro­fes­sor at the University of Idaho, sued the Idaho Department of Correction (IDOC) after the agency refused to pro­duce numer­ous exe­cu­tion-relat­ed records in response to Cover’s 2017 pub­lic-records request. IDOC ini­tial­ly respond­ed to her request by dis­clos­ing only a copy of the state’s exe­cu­tion pol­i­cy man­u­al, but failed to dis­close doc­u­ments includ­ing pur­chase orders, receipts, lot num­bers, and expi­ra­tion dates for exe­cu­tion drugs. A state tri­al court ruled in 2019 that IDOC must release the records about past exe­cu­tions and IDOC appealed. The Idaho Supreme Court is expect­ed to hear argu­ment in the case lat­er this year. Both ami­cus groups argue that reveal­ing the state’s sources of lethal-injec­tion drugs is in the pub­lic inter­est, and that the court should rule in favor of Professor Cover.

“There is no com­pelling need for secre­cy around exe­cu­tion pro­to­cols,” the ABA brief stat­ed. ​“No statute explic­it­ly requires secre­cy, and the depart­ment has no legit­i­mate inter­est in car­ry­ing out unex­am­ined, and poten­tial­ly uncon­sti­tu­tion­al, exe­cu­tions.” The ABA does not take a posi­tion for or against cap­i­tal pun­ish­ment, but believes if a state autho­rizes the death penal­ty it should be ​“administer[ed] … fair­ly and accu­rate­ly, with appro­pri­ate sub­stan­tive and pro­ce­dur­al pro­tec­tions.” In 2015, the ABA adopt­ed a res­o­lu­tion mak­ing clear that trans­paren­cy in exe­cu­tions is a nec­es­sary pro­ce­dur­al safe­guard, urg­ing states to ​“require dis­clo­sure to the pub­lic, to con­demned pris­on­ers fac­ing exe­cu­tion, and to courts all rel­e­vant infor­ma­tion regard­ing exe­cu­tion pro­ce­dures.” “[W]eighing the pub­lic inter­est in ensur­ing law­ful exe­cu­tions against the Department’s inter­ests in con­fi­den­tial­i­ty and secu­ri­ty,” the ABA brief argues, ​“the pub­lic inter­est pre­vails.” The Idaho Association of Criminal Defense Lawyers also filed a brief in sup­port of trans­paren­cy in executions.

The media coali­tion — includ­ing the Idaho Press Club, Idahoans for Openness in Government, the Associated Press, the Idaho Statesman, oth­er local news­pa­pers, and the Boise tele­vi­sion sta­tion, KTVB — filed a sep­a­rate brief urg­ing the court to rule against the state’s efforts at secre­cy. It is not for pub­lic offi­cials ​“to decide what is good for the peo­ple to know,” the brief said. ​“Not only does allow­ing the press to report on exe­cu­tions pro­mote a more informed dis­cus­sion of the death penal­ty, it pro­motes the pub­lic per­cep­tion of fair­ness and trans­paren­cy con­cern­ing the death penal­ty,” the brief states.

The media brief also not­ed that pub­lic dis­course in eval­u­at­ing death-penal­ty prac­tices plays an impor­tant role in assess­ing the ​“evolv­ing stan­dards of decen­cy” that deter­mine the con­sti­tu­tion­al­i­ty of those prac­tices. Accurately assess­ing those stan­dards ​“depends on pub­lic dis­clo­sure and debate about whether those pun­ish­ments com­port with our evolv­ing under­stand­ing of the Eighth Amendment. By con­trast, secre­cy sur­round­ing exe­cu­tions pro­hibits the pub­lic from mean­ing­ful­ly eval­u­at­ing those actions.”

Testimony at 2019 court hear­ings in Cover’s case revealed that Idaho offi­cials had delib­er­ate­ly mis­led the pub­lic about the cost of the death penal­ty, main­tained a set of fraud­u­lent finan­cial records, and redact­ed infor­ma­tion as incon­se­quen­tial as the hair­dressers who gave pris­on­ers their final hair­cuts. The state relied on unsub­stan­ti­at­ed claims that secre­cy was nec­es­sary to pro­tect the exe­cu­tion team from harass­ment and threats. It said that it could not reveal the sup­pli­ers of exe­cu­tion drugs because they would no longer pro­vide the drugs if their iden­ti­ties were made pub­lic. In clos­ing state­ments, a lawyer for Cover said, “[IDOC’s] argu­ment at this point is crys­tal clear — this infor­ma­tion is so impor­tant that we can’t release it, because it would change the way we do things.”