NEW PODCAST: Secrecy and the Death Penalty in the United States

As exe­cu­tion drugs have become more dif­fi­cult for states to law­ful­ly obtain and prob­lem­at­ic exe­cu­tions have become more fre­quent, states have expand­ed their efforts to shield their exe­cu­tion-relat­ed activ­i­ties from pub­lic scruti­ny. In the lat­est episode of Discussions with DPIC, Robin Konrad, for­mer DPIC Director of Research and Special Projects, joins Executive Director Robert Dunham and cur­rent Director of Research and Special Projects Ngozi Ndulue to dis­cuss DPIC’s November 2018 report, Behind the Curtain: Secrecy and the Death Penalty in the United States. Konrad, the lead author of the report, is now an Assistant Professor of Lawyering Skills at Howard University School of Law. The dis­cus­sion cov­ers the recent expan­sion of secre­cy in the use of the death penal­ty, the rea­sons for the unavail­abil­i­ty of lethal-injec­tion drugs, and the prob­lems that have result­ed from execution secrecy.

Secrecy poli­cies are ubiq­ui­tous in the states that are cur­rent­ly attempt­ing to car­ry out exe­cu­tions, Konrad explains. ​“Everybody has some type of secre­cy pro­vi­sion” relat­ed to the sources of exe­cu­tion drugs or the way exe­cu­tions are car­ried out, Konrad says. Secrecy pro­vi­sions con­ceal the sources of the drugs states obtain and the iden­ti­ties and qual­i­fi­ca­tions of the exe­cu­tion team, and restrict the por­tions of the exe­cu­tion wit­ness­es are per­mit­ted to see and hear. The pod­cast dis­cuss­es these issues and ques­tion­able mea­sures states have tak­en to hide poten­tial prob­lems, includ­ing Florida and Oklahoma tap­ing down pris­on­ers’ hands so wit­ness can­not see them clench their fists in reac­tion to the drugs, and Virginia and Nebraska clos­ing cur­tains to con­ceal how long the IV inser­tion process takes or the moments just before and after the pris­on­ers’ death.

The episode also includes a dis­cus­sion of the con­se­quences of secre­cy, includ­ing ille­gal actions that have been dis­cov­ered only by acci­dent or through inves­tiga­tive jour­nal­ism. ​“We’ve seen states act­ing in a way that is often ille­gal, where we’ve seen states pur­chas­ing drugs over­seas in an ille­gal man­ner from com­pa­nies or indi­vid­u­als that are less than rep­utable. We’ve seen the prison offi­cials dri­ving mon­ey in the mid­dle of the night across state lines to exchange mon­ey for drugs and drugs for mon­ey. We have seen the states using phar­ma­cies that have had numer­ous vio­la­tions. One phar­ma­cy that was used by Missouri had … 1800 vio­la­tions of state and fed­er­al law,” Konrad says. The pod­cast con­cludes with a dis­cus­sion of the ways in which secre­cy under­mines demo­c­ra­t­ic prin­ci­ples of open gov­ern­ment and hides prob­lem­at­ic state prac­tices. ​“When we’re look­ing at [a] gov­ern­ment … for the peo­ple, by the peo­ple, the peo­ple should know what is going on and states should­n’t be hid­ing infor­ma­tion about the most seri­ous pun­ish­ment that they car­ry out against their cit­i­zens,” Konrad says. ​“I don’t see how in any prin­ci­pled sys­tem of jus­tice, you can sus­tain a sys­tem that basi­cal­ly is ground­ed in secre­cy, ground­ed in hid­ing what’s going on from the pub­lic. You have to be open, you have to be hon­est, you have to be trans­par­ent, you have to be trust­wor­thy,” adds Dunham.

(Discussions with DPIC, Behind the Curtain: Secrecy and the Death Penalty in the United States, February 8, 2019.) Read the report, Behind the Curtain: Secrecy and the Death Penalty in the United States. See Podcasts and Secrecy.