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.”