Perils of State Secrecy Surrounding Lethal Injections

In a recent op-ed in the New York Times, attorneys Megan McCracken and Jennifer Moreno argued that the veil of secrecy that many states have placed over their execution process violates defendants’ constitutional rights and “deprives the public of informed debate.” The authors provided numerous examples where inmates executed with drugs from compounding pharmacies or with novel mixes of new drugs exhibited signs of consciousness and suffering. However, inmates whose executions are rapidly approaching are unable to mount a credible challenge to the drugs that will be used because legislatures or wardens have labeled the sources as state secrets. The attorneys concluded, “The Eighth Amendment requires that the ultimate punishment our society can impose and the means by which it is carried out are subject to the highest level of scrutiny. If prison officials conceal crucial information from judges, lawyers and the public, we have only their word that the drugs will cause death in a manner that complies with the Constitution. Clearly, we can’t leave that to trust.”

Megan McCracken and Jennifer Moreno are staff lawyers in the Death Penalty Clinic at the University of California, Berkeley, School of Law.

(M. McCracken & J. Moreno, “Secret Drugs, Agonizing Deaths,” N.Y. Times (op-ed), April 13, 2014). See Lethal Injection and Compouding Pharmacies.