Secrecy

Overview

Government trans­paren­cy is essen­tial to a demo­c­ra­t­ic soci­ety. This is nev­er more true than when the gov­ern­ment seeks to exer­cise its author­i­ty to take the life of a pris­on­er. For the pub­lic to be able make informed deci­sions about the death penal­ty, it must have access to infor­ma­tion about how cap­i­tal pun­ish­ment is applied. Yet many aspects of the death-penal­ty sys­tem are shroud­ed in secre­cy. Sometimes, as in the case of exe­cu­tion par­tic­i­pants and exe­cu­tion drug sup­pli­ers, secre­cy is explic­it­ly writ­ten into the law. In oth­er cir­cum­stances, such as the exer­cise of pros­e­cu­to­r­i­al dis­cre­tion to seek a death sen­tence, the use of peremp­to­ry strikes to remove poten­tial jurors with­out pro­vid­ing a rea­son, or a governor’s deci­sion whether to grant clemen­cy, the lack of pub­lic over­sight is part of the fab­ric of the system.

When law­suits or inves­tiga­tive report­ing have been able to pierce the veil of secre­cy, sig­nif­i­cant prob­lems often have been revealed. For example,

* In Missouri, inves­tiga­tive report­ing dis­cov­ered the iden­ti­ty of the state’s secret sup­pli­er of exe­cu­tion drugs — an Oklahoma com­pound­ing phar­ma­cy that was not licensed to sell drugs in Missouri and had admit­ted to near­ly 2,000 health and safe­ty vio­la­tions. Missouri then switched to a new secret com­pound­ing phar­ma­cy that pro­vid­ed the state drugs for sev­en­teen exe­cu­tions between 2014 and 2017. Investigative report­ing dis­cov­ered the iden­ti­ty of this sub­ur­ban St. Louis com­pound­ing phar­ma­cy and that the Food and Drug Administration had clas­si­fied the phar­ma­cy as ​“high risk” because of repeat­ed seri­ous health violations.

* Texas also con­ceals the source of its exe­cu­tion drugs, but inves­tiga­tive report­ing uncov­ered the iden­ti­ty of its secret com­pound­ing phar­ma­cy. The reports revealed that the com­pa­ny had been cit­ed for 48 vio­la­tions and had its license placed on pro­ba­tion. Other inves­ti­ga­tions have found states using unqual­i­fied exe­cu­tion­ers and import­ing drugs illegally.

States have fre­quent­ly attempt­ed to use their suc­cess­ful sup­pres­sion of infor­ma­tion to their advan­tage in legal chal­lenges to their lethal-injec­tion prac­tices. Missouri’s death-row pris­on­ers — ham­pered by state exe­cu­tion secre­cy pro­vi­sions — had argued in court that ​“Compounding-phar­ma­cy prod­ucts do not meet the require­ments for iden­ti­ty, puri­ty, poten­cy, effi­ca­cy, and safe­ty that phar­ma­ceu­ti­cals pro­duced under FDA reg­u­la­tion must meet.” Among the pos­si­bil­i­ties they list­ed, were that the drug may not be ster­ile, may be less potent than it needs to be, or may be con­t­a­m­i­nat­ed. At the same time that its phar­ma­cy was was com­mit­ting pre­cise­ly these types of vio­la­tions, Missouri respond­ed in its court fil­ings that the pris­on­ers’ con­cerns were spec­u­la­tive and that they had ​“not ma[de] a plau­si­ble claim that Missouri’s exe­cu­tion pro­ce­dure is sure or very like­ly to cause seri­ous ill­ness or need­less suf­fer­ing and give rise to suf­fi­cient­ly imminent dangers.”

Secrecy in the form of police or pros­e­cu­tors ille­gal­ly with­hold­ing evi­dence from the defense has result­ed in numer­ous uncon­sti­tu­tion­al con­vic­tions and death sen­tences. More than a half cen­tu­ry ago, in 1963, the U.S. Supreme Court ruled in Brady v. Maryland that pros­e­cu­tors must dis­close to the defense evi­dence that was favor­able to the defense because it was poten­tial­ly excul­pa­to­ry, could serve to impeach pros­e­cu­tion wit­ness­es, or could be a basis for the jury to spare the defen­dan­t’s life. Official mis­con­duct — often includ­ing sup­press­ing such evi­dence — has played a lead­ing role in many death-row exonerations.

Numerous court prac­tices and statu­to­ry lim­i­ta­tions on appel­late review also con­tribute to the arbi­trari­ness and unac­count­abil­i­ty of death-penal­ty cas­es. These can range from the sys­temic under­fund­ing of legal ser­vices for the poor — result­ing in the appoint­ment of coun­sel who are not will­ing or not able to obtain nec­es­sary inves­tiga­tive and expert ser­vices — to rules of ​“pro­ce­dur­al default” that pre­vent courts from address­ing mer­i­to­ri­ous legal issues that pri­or defense coun­sel failed to raise at the first oppor­tu­ni­ty or in the right man­ner. Surprisingly wide­spread prac­tices such as ​“rub­ber­stamp­ing” — in which judges uncrit­i­cal­ly adopt the pros­e­cu­tion’s pro­posed fac­tu­al find­ings and legal con­clu­sions word for word — also raise seri­ous con­cerns about the reli­a­bil­i­ty of appel­late review and the absence of pub­lic over­sight and transparency.

At Issue

Secrecy pre­vents a full and robust pub­lic debate about the real­i­ties of cap­i­tal pun­ish­ment. It has allowed states to engage in ille­gal and unsafe prac­tices sur­round­ing lethal injec­tion. The lack of pub­lic over­sight in deci­sions regard­ing charg­ing, jury selec­tion, and clemen­cy opens the door to bias and arbi­trari­ness. While indi­vid­ual dis­cre­tion is nec­es­sary to allow for a full con­sid­er­a­tion of each case’s unique cir­cum­stances, the lack of cen­tral­ized review results in dis­pro­por­tion­ate sen­tences taint­ed by racial and geographic imbalances.

What DPIC Offers

DPIC’s in-depth report, Behind the Curtain: Secrecy and the Death Penalty in the United States, pro­vides a thor­ough look at secre­cy sur­round­ing lethal injec­tion. It also tracks states’ lethal-injec­tion statutes, includ­ing secre­cy poli­cies. Notable court cas­es and inves­ti­ga­tions relat­ing to secre­cy can be found under News & Developments.