Judges in Idaho, Nebraska Order States to Release Execution-Related Records

Judges in Idaho and Nebraska have ordered prison officials to release execution-related records the states had sought to keep secret. Finding that the Idaho Department of Correction (IDOC) acted frivolously and in bad faith in its prior response to a public records request, a state court judge ruled on March 21 that officials at IDOC must release documents related to the state’s death-penalty and execution processes. In Nebraska, a federal district court judge ruled on March 15 that the state must provide information to lawyers representing Arkansas death-row prisoners relating to how Nebraska obtained the fentanyl used in executing Carey Dean Moore in August 2018.

In the Idaho lawsuit, Fourth District Judge Lynn Norton chastised IDOC for its bad faith in barely responding to a public records request for execution-related documents submitted by University of Idaho professor Aliza Cover. Judge Norton ruled that the Department must release documents that will include the state’s source of execution drugs it used in its last execution and ordered that IDOC pay court and attorney’s fees for Cover.

Cover had sought copies of receipts, purchase orders, and other information related to the drugs Idaho used in its last two executions in 2011 and 2012 and those it expects to use in future executions. The department disclosed only a copy of the state’s execution policy manual, claiming that the remaining documents were exempt from public review. Cover, who studies the death penalty and its application, sued. IDOC redacted dozens of items from execution records, including not only the names of prison staff who participated in executions, but their handwriting, and the names of people only tangentially involved in executions, such as clergy who counsel death-row prisoners and hairdressers who give prisoners their final haircuts. The state claimed, without evidence, that the redactions were necessary to protect those individuals from protest, harassment, or violence. Similar claims of threats against execution team members in other states have been found to be unsubstantiated. Idaho officials also withheld information on the source of execution drugs used in the past, claiming that suppliers would no longer provide the drugs if their identities were revealed.

Norton’s ruling will force the IDOC to release a receipt for lethal-injection drugs from a compounding pharmacy that were used in Richard Albert Leavitt’s 2012 execution, the most recent execution in Idaho. IDOC will be able to withhold information about the drugs from Paul Ezra Rhoades’s 2011 lethal-injection execution because the source may still be supplying drugs used in lethal injections.

In the Nebraska case, U.S. District Court Senior Judge Laurie Smith Camp gave the Nebraska Department of Correctional Services until April 12 to turn over documents detailing its efforts to obtain its execution drugs, but allowed the state to redact information concerning the identity of the pharmacy that supplied the drugs because the company had “made a business decision to decline any future sales of chemicals to any state, including Nebraska.” Arkansas prisoners who are challenging that state’s use of the drug midazolam in executions were seeking the information to meet the obligation imposed by the U.S. Supreme Court that they prove that an alternative drug was available. The court required Nebraska to disclose records related to how the state identified the pharmacy and persuaded it to supply fentanyl to Nebraska.

Many states attempt to shroud their execution processes and practices in secrecy. “When the state keeps secret basic information about the death penalty, the public cannot ensure that it is carried out humanely or constitutionally,” Cover said.

(Rebecca Boone, Judge: Idaho must reveal past source of execution drugs, Associated Press, March 22, 2019; Lori Pilger, Judge says Nebraska must provide information to attorneys for Arkansas death-row inmates, Lincoln Journal Star, March 15, 2019 ) See Secrecy. Read the Death Penalty Information Center’s report Behind the Curtain: Secrecy and the Death Penalty in the United States.