Behind the Curtain: Secrecy and the Death Penalty in the United States

During the past sev­en years, states have begun con­duct­ing exe­cu­tions with drugs and drug com­bi­na­tions that have nev­er been tried before. They have done so behind an expand­ing veil of secre­cy laws that shield the exe­cu­tion process from public scrutiny. 

As phar­ma­ceu­ti­cal com­pa­nies have tak­en action to pre­vent states from using their med­i­cines to exe­cute pris­on­ers, states have respond­ed by procur­ing what­ev­er drugs seem avail­able and obtain­ing them secret­ly through questionable means. 

Since January 2011, leg­is­la­tures in thir­teen states have enact­ed new secre­cy statutes that con­ceal vital infor­ma­tion about the exe­cu­tion process. Of the sev­en­teen states that have car­ried out 246 lethal-injec­tion exe­cu­tions between January 1, 2011 and August 31, 2018, all with­held at least some infor­ma­tion about the about the exe­cu­tion process. All but one with­held infor­ma­tion about the source of their exe­cu­tion drugs. Fourteen states pre­vent­ed wit­ness­es from see­ing at least some part of the exe­cu­tion. Fifteen pre­vent­ed wit­ness­es from hear­ing what was hap­pen­ing inside the exe­cu­tion cham­ber. None of the sev­en­teen allowed wit­ness­es to know when each of the drugs was administered. 

This retreat into secre­cy has occurred at the same time that states have con­duct­ed some of the most prob­lem­at­ic exe­cu­tions in American his­to­ry. Lethal injec­tion was sup­posed to be a more humane method of exe­cu­tion than hang­ing, the fir­ing squad, or the elec­tric chair, but there have been fre­quent reports of pris­on­ers who were still awake and appar­ent­ly expe­ri­enc­ing suf­fo­ca­tion and excru­ci­at­ing pain after they were sup­posed to be insen­sate. These prob­lems have inten­si­fied with the use of new drug for­mu­las, often includ­ing mida­zo­lam. In 2017, more than 60% of the exe­cu­tions car­ried out with mida­zo­lam pro­duced eye­wit­ness reports of an exe­cu­tion gone amiss, with prob­lems rang­ing from labored breath­ing to gasp­ing, heav­ing, writhing, and clenched fists. In sev­er­al of these cas­es, state offi­cials denied that the exe­cu­tion was prob­lem­at­ic, assert­ing that all had pro­ceed­ed accord­ing to pro­to­col. But with­out access to infor­ma­tion about drugs and the exe­cu­tion process, there is no way the pub­lic can judge for itself. 

Disturbing sto­ries of botched exe­cu­tions are just one sign of the need for pub­lic scruti­ny of lethal injec­tion. Investigators who have man­aged to uncov­er hid­den infor­ma­tion have found evi­dence of ille­gal actions, mis­rep­re­sen­ta­tions to the courts and the pub­lic, and incom­pe­tence in the con­duct of exe­cu­tions. States have repeat­ed­ly tried to con­ceal con­tro­ver­sial infor­ma­tion about exe­cu­tions, includ­ing the use of ille­gal­ly import­ed drugs, less than rep­utable drug sources, and unqual­i­fied exe­cu­tion­ers. Without trans­paren­cy, cas­es of incom­pe­tence or mis­con­duct can continue unchecked. 

Governmental trans­paren­cy is fun­da­men­tal to democ­ra­cy. The pub­lic has a right to know how its gov­ern­ment is car­ry­ing out its busi­ness and whether the gov­ern­ment is work­ing hon­est­ly and com­pe­tent­ly, by and for the People. The Eighth Amendment requires that pun­ish­ments imposed by the gov­ern­ment con­form to pub­lic stan­dards of decen­cy, but this is impos­si­ble to deter­mine if cru­cial infor­ma­tion about a pun­ish­ment is kept from the public. 

Secrecy increas­es the risk of prob­lems. It results in more botched and poten­tial­ly prob­lem­at­ic exe­cu­tions. Prisoners have a right to infor­ma­tion about the exe­cu­tion process so that they can raise legit­i­mate chal­lenges to exe­cu­tion meth­ods that may sub­ject them to excru­ci­at­ing pain. Without this infor­ma­tion, pris­on­ers can­not meet the high bur­den of proof the courts have set out for challenging executions. 

This report doc­u­ments the laws and poli­cies that states have adopt­ed to make infor­ma­tion about exe­cu­tions inac­ces­si­ble to the pub­lic, to phar­ma­ceu­ti­cal com­pa­nies, and to con­demned pris­on­ers. It describes the dubi­ous meth­ods states have used to obtain drugs, the inad­e­quate qual­i­fi­ca­tions of mem­bers of the exe­cu­tion team, and the sig­nif­i­cant restric­tions on wit­ness­es’ abil­i­ty to observe how exe­cu­tions are car­ried out. It sum­ma­rizes the var­i­ous drug com­bi­na­tions that have been used, with par­tic­u­lar focus on the prob­lems with the drug mida­zo­lam, and pro­vides a state-by-state record of prob­lems in recent exe­cu­tions. It explains how gov­ern­ment poli­cies that lack trans­paren­cy and account­abil­i­ty per­mit states to vio­late the law and dis­re­gard fun­da­men­tal prin­ci­ples of a demo­c­ra­t­ic gov­ern­ment while car­ry­ing out the harsh­est pun­ish­ment the law allows. 

View DPIC’s Press Release for Behind the Curtain: Secrecy and the Death Penalty in the United States