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.

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