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.