Behind the Curtain

Robert Dunham 0:01

Hello, and welcome to Discussions with DPIC. I’m Robert Dunham, DPIC’s Executive Director.

Ngozi Ndulue 0:07

I’m Ngozi Ndulue, Director of Research and Special Projects.

Robert Dunham 0:11

In November, DPIC released a report on execution secrecy called Behind the Curtain. This major report exposed many of the flaws in the capital punishment system in the United States and how states had been retreating behind a curtain of secrecy in order to carry out executions. Today we’re joined by Robin Konrad, the principal author of the report. Miss Conrad is an Assistant Professor of Lawyering Skills at Howard University Law School. She’s a former capital defense lawyer and federal defender who has represented death row prisoners in Alabama, Arizona, and Oklahoma, among other states. She also argued Glossip vs. Gross, the lethal injection case, in the United States Supreme Court. Before joining the law faculty at Howard, Robin was DPIC’s Director of Research and Special Projects. Welcome to Discussions with DPIC.

Robin Konrad 0:55

Glad to be back.

Robert Dunham 0:56

When we talk about secrecy and the death penalty, it’s a pretty broad topic. What does the landscape look like right now?

Robin Konrad 1:03

The landscape for the death penalty, in particular with regard to executions and secrecy, is pretty secretive. There is not a lot of information that the states are providing to members of the public and the media about what’s going on behind the scenes. The states have limited access to information about the drug source, information about where they’re getting the drugs from, and also information about the medical team members, so people who are actually carrying out executions and part of the team that sets the IV line, that mixes the chemicals, that pushes the syringes and the qualifications of those people.

Robert Dunham 1:44

Has always been secrecy or have things changed in recent years?

Robin Konrad 1:48

There has been some limited amount of secrecy. If we go way back, if we’re talking with century or so ago, we used have public hangings in the United States and that was obviously very public. Then there was a move probably in the, you know, early part of the 20th century to bring executions behind the prison walls and so we saw more secrecy in the sense that members of the public weren’t witnessing executions. And that’s why media was really important. So that people would be in witnessing the executions and knowing what was going on and being able to report to the broad public. But when we saw lethal injections happening, which started in the late 70s, early 80s, the formula was created in the late 70s, the first execution was carried out by Texas via lethal injection in 1982. We now have this medicalized procedure that some people are witnessing but we didn’t know a lot about it. As lethal injections were carried out, people were looking to find more information about what was going on. There was a point in time — where we did know what, who was manufacturing the drugs — there was only one manufacturer of one of the key drugs that was used for decades. In 2010, that drug manufacturer stopped producing that drug and at that point, we saw a shift because what happened was drug manufacturers decided that they were not wanting to distribute these drugs for purposes of lethal injection. The sole manufacturer of one of the drugs stopped manufacturing the drug because the plant had to move to Italy. The Italian government was going to impose sanctions on the company if they distributed to the United States for purposes of lethal injection because of laws in Italy. And then, after that, the other pharmaceutical companies, whose drugs were being obtained by the Department of Corrections, did not want their drugs being used in executions. So, we see a backlash from the Department of Corrections saying well, we’re not going to tell the public which drug companies we’re actually purchasing from. And so in the last seven or eight years, we’ve seen Departments of Corrections’, state legislatures creating these laws that prevent the public from actually knowing who’s manufacturing the drugs that they’re using in lethal injections, where they’re getting those drugs from, and what the sources are.

Robert Dunham 4:26

Now I know you looked for the report at which states were carrying out executions and which are them actually have secrecy provisions in place. Who does and who doesn’t?

Robin Konrad 4:36

Everybody has some type of secrecy provision. So there are states that have laws that they have enacted in the last seven years. And then there are states who had existing laws and policies in place that they’ve then used to be able to say “we’re not going to give you any information about the drug source under our existing laws”. So all states are preventing the public and the media and prisoners from knowing any information or very limited information about the source of drug and where they’re getting these lethal injection drugs from.

Ngozi Ndulue 5:13

And does this secrecy extend past the source of drugs to actual components of the execution itself?

Robin Konrad 5:21

Yeah. So one of the things that I looked at in doing this research is what part of the execution witnesses get to actually see. The states limit what is viewed by the few members of the public who actually get to witness and execution and it’s very, very limited. We’re talking a small number, it could be a couple members of the media, a very select group of people that get to witness an execution. And what they see varies from state to state, but all states prevent some level of viewing. A lot of states do not allow the witnesses to see the prisoner actually being brought into the execution chamber and being strapped to the gurney. They don’t allow the witnesses to see the insertion of the IV line. And no state — to date — has allowed any witness to actually see the drugs being pushed and know when each drug is being administered. So when there are states that use more than one drug and their protocol witnesses do not know when that is happening. So all they see oftentimes is a curtain opens and they’ll just see somebody lying on the gurney ,with oftentimes a sheet over their body, so they may not even know where the IV was placed on the prisoner and then they just watch until, sometimes death is called, sometimes not. They close the curtain and then they find out the death was called. So practices vary from state to state but, ultimately, there are levels of the execution that are not being viewed or seen or heard because they also turn off the microphone, so that witnesses cannot hear what the prisoner may be saying, or any sounds that is coming from inside the execution chamber.

Robert Dunham 6:09

I want to get back to the sounds a bit later, but one question I have is, why do states claim they need the secrecy laws and what are the real reasons for the secrecy?

Robin Konrad 7:21

So states have said that they need the secrecy laws because, if not for these laws that protect the identity of the businesses, then they wouldn’t be able to get the drugs. And so that’s been the repeated message from the state that, if they don’t have these secrecy laws in place, then the pharmaceutical companies or the compounder pharmacies and we haven’t talked about that, but, in addition to manufacture drugs, there’s also compounding pharmacies that provide drugs and that is for drugs that aren’t actually manufactured but made by taking the ingredients of the drug, mixing it together, and preparing it. So the states have said “if we turn over information about the names of these places, companies, businesses, then they’re not going to provide the drugs to us”. And we’ve seen states continue to get execution drugs, continue to carry out executions, despite saying that if they have their name revealed, then they’re going to not be able to carry out executions. And there have been companies and businesses, manufacturers whose names have been publicly revealed. And that, through journalists doing work, through people litigating, really having to dig and uncover to figure out where these drugs are coming from. They have learned some of the manufacturers and states still continue to get drugs.

Ngozi Ndulue 8:54

We’ve talked about why states claim that they need drug secrecy laws, but can we also talk about consequences because we’re talking about how states carry out their executions. The second half of the report focuses on problematic executions, can you talk a little bit more about the connection between the secrecy and problematic execution?

Robin Konrad 9:16

Sure, and we haven’t really got into that, but there has been a host of what we call “problematic executions” in the last few years. As we’ve seen a rise in secrecy, we’ve seen a rise in problematic executions, in part because states have been turning to experimental drug formulas. So they’ve been shifting from drugs that they have used in the past to different types of drugs. I’m not going to get into the chemical makeup of all the different types of drugs used, but suffice it to say that there’s one drug in particular that we report on in this report, called midazolam, and that drug we’ve seen repeatedly in these problematic executions. And when I say problematic execution, you know, we often talk about a botched execution. When we think of a botched execution, you usually think something went wrong, so maybe the state didn’t follow its protocol or, you know, there was some mistake that happened. In these executions that are problematic, the state is following its protocol as best we know. And I say that as best we know because sometimes we don’t know exactly what’s going on behind the scenes, but they’re saying, look, we’re going to use this particular drug formula. We’re going to use this drug midazolam, which is a benzodiazepine similar to Xanax, that is just an anti anxiety drug. They’re using that drug, and they use it as they say, they’re going to use it and experts in the field have said, “if you use that drug, you’re going to see gasping, you’re going to see problems, snorting, things like that.” And that’s exactly what we have seen. With these problematic executions, they have been on the rise in the last five years in almost every state that’s carried out an execution using midazolam, you’ll see varying degrees of problems from some short term gasping for a few seconds to one execution in Arizona that, out of full disclosure, this was a client of mine — Joseph Wood gasped and gasped for nearly two hours. So his execution, he was, it started and then was pronounced dead an hour and 57 minutes later and was gasping, as one reporter described it, like a fish out of water over 600 times. So we’re seeing these problematic executions and often the state’s response in a problematic execution in Alabama was,” oh, we followed our protocol”. A response in an execution and Arkansas was, “oh, everything went according to plan. There weren’t any problems”. So they’re very much saying there was no problem, despite witnesses seeing and reporting these gasps, these gasps for breath, these clenching of fists, a lot of a movement that can be seen, despite there being limitations on what witnesses see, including a sheet over a body or having the prisoners having their hands, feet, torsos restricted by belts and buckles.

Robert Dunham 12:31

I’d like to unpack this a little bit. Let’s start at the top and walk it through. First, the states have been saying they need secrecy so they’re able to obtain the drugs. I don’t understand how that justification has anything to do with making it so that you can’t see what’s happening inside the execution chamber. The next part, once they get the drugs, to me, secrecy is what are you trying to hide. In the execution of Ricky Gray, Virginia had some problems. Can you tell our listeners what happened there and how Virginia responded? Because my thought is what they’re trying to do is use secrecy to conceal oversight to prevent public oversight.

Robin Konrad 13:11

I think you’re right, Rob in that regard, the execution that you mentioned was Virginia executed Ricky Gray and the way that Virginia had carried out executions in the past was to bring the witnesses in and then bring the prisoner into the execution chamber. The witnesses would see that, so they’d see the prisoner walking in, they’d see the prisoner being strapped to the gurney, then they would shut the curtains and insert the IV. The reason that states say that they need to shut the curtains while the IVs are being inserted to not allow witnesses to see this is, they say, that they’ll expose the identity of the medical team members. Now, not all states keep it secret. There are a handful of states that allow the witness to see that and they have done so by closed circuit cameras, by having the medical personnel wear masks similar to a surgical garb. In Ricky Gray’s execution, the time that it took to set the IV line was abnormally long. So you had media, you had public witnesses sitting there waiting and there were witnesses who had witnessed executions in the past in Virginia and thought, “Wow, this is taking a long time. What’s going on? What’s the problem?” I think it took two or three times longer than normal or had been happened in the past. So, after the execution, the question arose: “Well, what happened? Why did this take so long? Why were we sitting there a lot longer than normal?” The state said there was no problem and, within a month or two, Virginia changed its protocol and instead of making the protocol more open, and allowing the public to see what was going on, why it took longer this time, instead, they changed the protocol so that they took away what witnesses could see and made it so that witnesses now can only see the execution starting halfway through, after the prisoner has been brought in, put on a gurney, the IV has been set, only then do the witnesses get to see what’s going on. So once the IV lines are already in place, so that way witnesses no longer know how long it actually takes.

Robert Dunham 15:28

The Ricky Gray case tells us about the problems states may have in setting the IV lines. But there are other kinds of things that states are doing that are concealing potential problems. And I know that, from talking with anesthesiologists, one of the issues about the use of midazolam is that one signal that the prisoner may be conscious and experiencing pain from the other drugs is that they may be clenching their fists or grasping things tightly. Have there been examples of states engaging in activity to hide that kind of evidence of an execution going bad?

Robin Konrad 16:02

We have seen that in Florida and in Oklahoma where they taped down the prisoners hands. And so, prisoners are strapped to the gurney and usually the strap goes around the wrist. So you’ll have, the prisoner will have the ability to move his or her fingers. In Florida, when they switched over to using midazolam, they taped the prisoners hands down. And that was from talking to people doing research that ,that had never happened before until they made the switch to midazolam. The state claimed that part of the reason for doing that was so that a prisoner couldn’t throw gang signs, but that had never been an issue in the past. That had never happened as far as what would make the state say that the prisoner could throw gang signs now as opposed to 10 years earlier or five years earlier. In Oklahoma, in the execution of Clayton Lockett, which was a horribly botched execution that went wrong, where not only was the use of midazolam problematic, but the executioner did not properly set the IV such that it, during the execution, came out of place and the drugs ended up being in the tissue and made a golf ball size formation of the blood and drugs. That execution was the one that resulted in the case, Glossip vs. Gross, that you mentioned earlier before the United States Supreme Court. But in that instance, Oklahoma taped the prisoners’ hands again for the first time and had not done that in the past. So, we’re seeing things that the states are doing that don’t seem to have any legitimate reason for doing so and that had not been happening in the past until they start experimenting with these drugs where we have seen, repeatedly, problems with the grasping of the hands and clenching of the fists.

Ngozi Ndulue 18:05

I’d love to get into Glossip vs. Gross. But before we do that, I wanted to talk about what’s being hidden in the process even before the execution happens. So, we’re seeing either the drugs themselves, or the state’s secrecy in the execution process, are hiding. What about that secrecy about drug sources? What kind of behavior has been revealed, once that kind of veil of secrecy, has been removed?

Robin Konrad 18:31

In the cases where information has been uncovered, and it’s generally by accident, or by very good investigative journalism or, on occasion, some litigation where things are revealed in litigation. 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, I think, it was 1,800 violations of state and federal law. A lot of problems when we do uncover the sources of the drugs that the states are getting, there’s problems with them. And so there’s that connection where a state may not want to reveal this information because when they reveal it, or if it is revealed, not when they unintentionally reveal it, but when somebody discovers a source that they’re using, there are a lot of problems surrounding that source.

Robert Dunham 20:00

So we’ve talked about problems with the IVs being set and states, for no apparent legitimate criminological purpose, taping down prisoners’ hands in situations that would prevent observers from seeing that the execution could possibly be going awry. There have also been issues have come up with sound and not having the sound turned on. Why does that matter?

Robin Konrad 20:23

That matters because the witnesses can’t always hear if there’s noises, moans, groans, sounds of agony, and then there becomes this debate where the state again is the only person possessing the information and the state says, “oh, that wasn’t gasping, that was snoring”. And so you have a discrepancy of, again, the state is the only one in control of the information and it’s the information that the public should be able to access and be able to make its own determination. If you have 20 witnesses who are hearing that sound and are reporting back to the public at large, “no, that wasn’t snoring, that was gasping. This is what I heard”. And in particular, in the execution of Joseph Wood, the microphone was off and so the witnesses only heard the noise that they heard, which one of the reporters described similar to a fish out of water, is when somebody would come in the room and make an announcement, the director would make an announcement. So, for that short period of time, they would be able to hear the sound coming from the execution chamber. There have been instances where, in some executions, that reporters have said the sound was so loud, they could hear at least some of it, even though there wasn’t a microphone turned on. But it would certainly allow the public more information and be able to make the determination of what exactly that noise is and what it sounds like and for media to be able to adequately report the information.

Robert Dunham 20:23

These are things that can make a difference in determining whether the execution is going properly or not going properly.

Robin Konrad 22:02

Right, of course. That information could then be provided, again, to assess what’s going on and this, for the broader question of whether these executions are violating the Eighth Amendment.

Robert Dunham 22:22

After we have the taping down, the turning off the sound, we also have states like Nebraska, in its one experimental execution with the four drug protocol that no one had ever used before, actually shutting the curtain so you couldn’t see the time of death.

Robin Konrad 22:37

Right, I think it was almost 14 minutes that the curtain was closed before they said that the execution was over. We saw another example of shutting the curtain during the Clayton Lockett execution where, in the middle of the execution, they decided to close off the execution so that the witnesses could not see the remaining 15-20 minutes of the execution. Witnesses are left with wondering, “what’s going on behind the curtain? What is going on? Is that prisoner moving? Is that prisoner gasping? What are they giving the prisoner, more drugs? What is happening?” And again, the public will not know.

Robert Dunham 23:18

Of course, in Clayton Lockett’s case, what was going on was they were calling off the execution because it was so badly botched. He was bleeding all over the place and he eventually died of a heart attack. Were the witnesses able to see that?

Robin Konrad 23:31

No, no, that was that was after the curtain was closed and in fact, after the curtain was closed, you had the physician, who was the physician executioner there trying to set another IV line because the one that had been set had failed. And he hit an artery, blood splattered all over. Another medical official was telling the doctor, well, you can’t set this line in an artery. They didn’t even have any additional drugs to inject, so they were needlessly poking this man, having blood everywhere.

Robert Dunham 24:07

It seems like there’s a huge risk of incompetent administration of execution procedures. Obviously in Clayton Lockett’s case, it’s pretty clear that there were problems and there have been other cases where these non-trained personnel have been unable to properly set veins. But even when there is medical personnel, there’s been problems. The dyslexic doctor in Missouri, can you tell our listeners a bit about that and how Missouri responded? Did they make the choice of doctors more transparent or did they hide that from the public?

Robin Konrad 24:42

Yeah, so this happened in Missouri more than a decade ago. The executioner physician who they had hired and used in numerous executions had a not so great history. He had had several malpractice lawsuits filed against him. He had been disciplined. As you mentioned, he was dyslexic, which, in and of itself wouldn’t be a problem except he admitted that he didn’t have notes, he didn’t follow a protocol. He said, sometimes he would mix up the amount of drugs that he was using, which is really problematic, especially because of the formula that was being used by Missouri at the time was a three drug formula. Which, the first drug is, is intended to put the prisoner in a deep anesthetic state so, that they don’t feel the effects of the second and third drug. The second drug paralyzes the prisoner, and, if the prisoner is aware during the second drug, he will literally feel like he’s suffocating to death but will not be able to move and speak and say anything. And the third drug that’s given, the purpose is to stop the heart and that drug, when injected in the large bolus dose that’s given, feels like little liquid fire going through the vein. So it’s really important that that first drug is administered properly, correctly, and in the correct dosage. And so when Missouri had a physician executioner who was incompetent and not using notes, and not following a protocol, that gives rise to a severe risk that the prisoner will suffer and feel the effects of the second and third drug. When there was litigation going on, some of the prisoners on Missouri’s death row had filed a lawsuit and they discovered the person who was in charge of carrying out executions. And it was this doctor, Dr. Doerhoff, and the federal judge who is overseeing that litigation, said this doctor could not perform any more executions. It was revealed all of these problems and Missouri, the state of Missouri responded by changing their statute. When they change their statute, you would think, well, maybe we would do something to protect this from happening again. Instead, they increased the secrecy in the statute and said, we’re not going to reveal this information and so the public won’t be able to learn it. So this just, once again, you see the states responding not through transparency, not through figuring out how they can improve and allow the public to see what’s going on with executions ,but instead, let’s create a law that’s going to make this process less transparent.

Ngozi Ndulue 26:22

That lawsuit brings up the impact of litigation on secrecy and secrecy on litigation. Being in the unique position as having argued Glossip vs. Gross in front of the United States Supreme Court, about what effect Supreme Court precedent has had on the way that states are approaching lethal injection and lethal injection secrecy?

Robin Konrad 28:03

Sure. And let me, for the listeners who aren’t familiar with Glossip vs. Gross, give just a very, very brief background. That was a case that arose after the botched execution of Clayton Lockett, which we’ve talked about, where several prisoners challenged the lethal injection process in Oklahoma, saying that there weren’t safeguards in place, that if they were executed, using the protocol in place at the time, that they would suffer a cruel and unusual punishment. The protocol in place used the drug midazolam as well as the second and third drugs, the paralytic and the liquid fire going through your veins. And so, the prisoners said, this is going to be cruel and unusual if the state’s allowed to carry it out. It was a very, very short time frame that the prisoners who were litigating this case had in order to review all the information from the state’s investigation of Clayton Lockett’s execution, review documents try to figure out what happened, get their medical experts to say, this is what’s going on. It was a few weeks, and there was a hearing held in the district court. It was a few days long, the District Court issued a ruling very quickly because there were pending executions. The case ended up in the Supreme Court because it lost below, it lost in the lower courts. The two main issues before the United States Supreme Court were one, that this particular drug, midazolam, was problematic. And so, that was one of the issues, and I’m really making it easy for listeners to understand. So, one had to do with a drug. The other issue had to do with the burden that a prisoner who is challenging a method of execution has when he goes into court. In that case, the prisoners argued that all they had to do was go into court and say, “”hey, the state’s going to execute me. And they’re going to do it with a method that’s going to torture me to death and that’s going to violate my Eighth Amendment”. That was what, they argued, was their understanding of the law and they said, that’s all they needed to prove. What the state had argued was that no, in addition to saying this method that we’re going to use is going to be cruel and unusual, the prisoners had the burden of also saying, well, yes, it’s going to be cruel and unusual, but also, you have to give the state an alternative. So, it put the burden on the prisoner to come up with an alternative method of executing them. Those were the two big picture issues. The United States Supreme Court ultimately decided in favor of the state and said, yes, the prisoner has a burden of showing an alternative. Not only do you have to prove that the state’s going to execute you in a manner that would be cruel and unusual punishment, but you also have to tell the state how it can execute you in a way that would be constitutional. That ruling has resulted in a lot of lower courts, a lot of prisoners, not being able to meet that burden. The problem that arises when coupled with secrecy is that prisoners don’t know what’s available to the state. The language from the United States Supreme Court calls for a readily available alternative and so, what does that mean? And, states have held information about what is available to them. They argue that nothing’s available to them. So if a prisoner proposes an alternative, such as a different drug or different method of execution, the state has been able to say, well, that’s not available to us. So we’re going to still execute you using the method that you have argued as the prisoner would be unconstitutional.

Ngozi Ndulue 32:07

The consequences of that are really breathtaking. When you see prisoners saying, well, you know, Texas, for an example, has been leading in executions and we see that they are getting the drug. But courts are saying that’s not enough. What are the prisoners’ options for actually proving that something’s readily available when state secrecy is hiding all of the relevant information from them?

Robin Konrad 32:40

That’s kind of the big problem. I mean, I don’t know that I have the answer because we haven’t seen much success since the Glossip decision came out, which was in June of 2015. There have been prisoners who have brought alternatives such as the firing squad or gas. You’ve seen prisoners opt for changing the drug formula, removing the second and third drugs that would cause the severe pain and suffering, but they haven’t been successful. In fact, one of the circuits that has decided the issue has said that, if it’s not available under the statute, so if a state statute doesn’t allow for a certain type of method of execution. So in other words, if a prisoner said, “hey, I don’t want to be tortured to death by this drug formula, I want you to use a firing squad which has been used in the past”, If the state statute doesn’t have that particular method, then they wouldn’t be able to use it because it’s not, quote unquote, “readily available”. Which means states can further insulate themselves from constitutional challenge. More recently, in the last few months, we’ve seen several prisoners in Tennessee choose to be electrocuted instead of having the drug formula using midazolam that Tennessee wanted to use.

Ngozi Ndulue 34:04

In one of those cases, Justice Sonia Sotomayor mentions this descent into barbarism, connected to the type of burden that has been put on prisoners to really provide means for their execution without the actual tools for that. Getting into the big picture, anytime that we’re talking about methods of execution, the particular drugs that are being used, specific actions that are taking place in the execution chambers, there’s this big picture question that comes up about. So, why for folks who have structural issues with the way that the death penalty is being implemented, why should we be focused that at this stage at how states are procuring drugs? And how they’re hiding actions in the procurement or in the execution chamber? What’s the big picture impact here?

Robert Dunham 34:59

One of the fundamental issues is, we’re dealing with criminal justice here. We’re dealing with the law and the enforcement of the law. The issue that we see over and over and over again in these circumstances is states essentially skirting the law, hiding facts, breaking the law in order to carry out the law and that’s, apart from hypocrisy, that’s bad public policy. We’re also a government that is supposed to be a government of the people. And that means it’s supposed to have oversight by the people. And that means that the policy decisions for important policies should be based on information that’s available to the public. Over and over and over again, in every aspect of carrying out executions, we’re seeing states withholding that information. I think it’s one of the reasons that support for the death penalty has been declining in the United States, especially among people who are conservative because, trust me, I’m the government is never an acceptable justification for a policy decision. Conservatives, who have a general distrust of government, are seeing the state saying over and over and over again we didn’t botch that and everybody who is there says yeah you did. The remedy for we didn’t botch it is, we’re not going to show it to you next time we carry out an execution. So more and more people are saying we can’t trust the government with this policy and a lot of that, I think, is either a direct effect of the secrecy or is made worse because of the secrecy.

Robin Konrad 36:35

To add to your point about people who are conservative and fiscally conservative, we saw in Nebraska the state purchasing drugs from overseas from a distributor in India for an enormous fee that was over $50,000 for vials of drugs at the time, Nebraska hadn’t carried out an execution in almost 50 years. Now, of course, this year they carried out their first execution, but they’re stockpiling these drugs for this huge amount of money that then they never ended up getting the drugs. What are conservatives and people who are fiscally conservative, why our state’s wasting all this money on drugs that they don’t even ever get because they’re trying to do so illegally and import them in violation of the law? But also thinking about big picture and what this means, when we look at the death penalty and thinking about the Eighth Amendment we talk about evolving standards of decency. And that’s kind of the lingo that has been used by the courts and the standard and we say, “as a society, we evolve and where are we now and what are we looking at”. And, when you examine what evolving standards of decency mean, you’ve got to look at the big picture. And so when we look at where we are with regard to pharmaceutical companies that don’t want their drugs being used in executions, does that mean we’ve evolved in a manner that doesn’t allow for lethal injection executions anymore? I mean, that’s one of the big picture questions, right, that we get at ,when, should states be allowed to hide information that is important and necessary to this conversation about the death penalty and what it means.

Robert Dunham 38:28

It’s also fundamentally important in another way. Obviously, at least to people who have followed the United States Supreme Court case law, the views of the relevant professional associations and relevant professions is part of what constitutes the, quote, “evolving standards of decency”, but also public opinion of the lay public makes a difference. By hiding all this information, you’re skewing what that public opinion is. You’re not allowing for a meaningful public discussion about whether execution in this way is something that is appropriate, is something that we want to have. Now, this is something, we’ve talked about conservatives, but conservatives are not the only people who care about government incompetence. It’s not just a question of Big Bad government. It’s the question of bad government. And most people who care about government, who care about public policy, who don’t want to waste money and don’t want the Keystone cops to be running their criminal justice system should be concerned about what we’re seeing here. Nebraska, they go overseas for drugs, they deal with a disreputable company, they illegally import the drugs or try to, they never get the drugs into the country at all. Missouri violates all sorts of federal law. They send staff members across state lines with cash. They purchase controlled substances from one state, move them surreptitiously to another state, probably in violation of federal law, and then they don’t prepare any of the paperwork. Do we want our state’s violating the law to carry out the law? I think that’s a fundamental question. Do we want them to be so inept that they don’t understand what the law is? That’s another question. Is this an appropriate way of doing things at all? Those are all some of the, I think really pressing, not political questions, but good government questions that secrecy is throwing at us.

Ngozi Ndulue 40:23

Kind of seeing the pernicious effects of the secrecy in a variety of aspects. We’re also seeing illegitimate supply chains, right, there’s the supply chain controls that are supposed to make sure when you’re having pharmaceuticals, which are potentially dangerous and potentially able to be misused drugs, that they’re supposed to be protections about how they actually get from a pharmaceutical company to the end user, that we have states that are willing to circumvent. One of the recent developments, I think is really important as an example of that, is the Texas compounding pharmacy that was unveiled through an investigative reporter shortly after, I think just the week after our secrecy report came out. Rob, do you want to talk a little bit more about what happened in Texas around that compounding pharmacy?

Robert Dunham 41:13

Texas carries out executions with a single drug. So it doesn’t have to get three different drugs. It hasn’t been getting drugs from the major pharmaceutical companies. It has been getting drugs from a compounding pharmacy. Now that, in one sense, is an advantage because all of the pharmaceutical companies say, we’re not going to allow our drugs to be sold for executions. Texas gets around that by going to a compounding pharmacy. They keep that information secret. On the heels of Chris McDaniel’s disclosure of the apothecary shop, the shop that Robin was talking about earlier, the compounding pharmacy that had 1800 violations of health and safety regulations that supplied the drugs to Missouri, Texas went to its own compounding pharmacy, a pharmacy in suburban Houston. It didn’t let the identity be known. It kept it secret. Chris McDaniel, again, through his investigation, was able to find out what its identity was. It turns out, the Texas pharmacy had had a number of health and safety violations, 48 of them, over an 8 year period. It was one of only 8 compounding pharmacies in the state of Texas that had either a suspended license or was under probation. It was under probation. We see that the company is not the most reputable. When you have a tainted company with health and safety practices that are questionable, it casts the things that witnesses have seen in the Texas executions in a different light. For years, we didn’t seem to have any complaints about the Texas executions and then suddenly, over the last couple of years, paralleling the time that the state was dealing through this tainted compounding pharmacy, we began to hear statements by the people who are being executed, the condemned prisoners mentioning that they could feel burning. We never heard that before. In 5 of the 13 Texas executions, we had comments like that, which were suggestive of either drugs that were outdated or were tainted. That’s important because the reporters who had been trying to investigate Texas practices had found evidence that the state seemed to be just redating their drugs as opposed to getting new supplies. Whether that’s true or not, we don’t know, but it’s critical, because the state may well have been executing people with tainted drugs. It gets even worse though, because we know from past experience that, when some states have been unable to obtain execution drugs on their own, they have been able to get some drugs by borrowing them from other states. In Virginia, in fact, in one of its executions had obtained execution drugs from Texas. There’s nothing in the law that authorizes states to send controlled substances across state lines for execution purposes, or for any other purposes. We know from admissions made by the Commonwealth of Virginia that they didn’t have appropriate controls in place for transporting, refrigerating, and so forth. That becomes important this year because South Dakota executed Rodney Berget and Rodney Berget was a volunteer, gave up his rights, didn’t challenge the execution process. South Dakota wouldn’t say where it got his drugs from, wouldn’t even say what the drugs were. We found out later on that it was pentobarbital, the same drug was used in Texas and we found out that, from Berget’s last words, “Is it supposed to feel like this?”, that he was experiencing something unusual in the execution process. It is possible, and the circumstantial evidence suggests, that South Dakota obtained the drugs or may have obtained the drugs from Texas and it might have been part of the same batch of bad drugs produced by this troubled compounding pharmacy. It’s really significant and it goes to what we’re seeing over and over and over again, that states are not carrying out executions on the up and up.

Ngozi Ndulue 45:27

There’s a lot of having to connect these dots because of state secrecy laws, your hands are tied in many ways in actually trying to figure out what’s going on in this process, which is at the very end of a death penalty case, issues around executions. One thing that’s really interesting and really disturbing is that we’re seeing this secrecy in lethal injection in executions. It seems like it’s actually part of a bigger picture of secrecy in the criminal justice system in general. One piece, that I can think of off the top of my head, is when you’re seeing patterns of misconduct and it’s only through chance or diligent investigation that you’re you’re uncovering that. Can we talk about other areas where we’re seeing the secrecy, when we expand it past lethal injection, expand it past execution, to the entire capital punishment system?

Robin Konrad 46:25

Just by way of very brief background, after the Supreme Court decided the case in Glossip vs. Gross, the named plaintiff Richard Glossip was a prisoner on Oklahoma’s death row and Oklahoma scheduled his execution. They scheduled it and it was stayed once or twice for, for various reasons but the, the last, most recent, time that they scheduled it was the end of September of 2015. He was brought to the execution holding chamber, it was only maybe 30 minutes, an hour before the execution was scheduled to begin, he was waiting and then the execution was called off. It turned out that the reason why the execution was called off is because the state had the wrong drug. Instead of potassium chloride, it was potassium acetate. The state called off the execution and what ultimately happened was, and we learn this later, there was a division in officials, government officials of what to do whether to go forward with that execution, whether to call it off. It definitely was a drug that wasn’t in the protocol. Ultimately, they did call off the execution and Richard Glossip is still alive and they have not carried out any executions. And what happened after that was the Grand Jury investigation occurred and the Grand Jury investigated the circumstances related to Oklahoma’s executions in particular. Not just the called off execution of Richard Glossip, but they had, earlier in the year, executed Charles Warner, who was one of the people involved in the lawsuit that ended up before the United States Supreme Court and he was executed before the United States Supreme Court decided to grant certiorari and hear the case. The state had used the wrong drug in his execution as well. And so, what the grand jury found was that there were problems and there’s information about the Grand Jury investigation in the DPIC secrecy report. The Grand Jury report called state actors negligent, careless, and sometimes even reckless. And they found that the wrong drug was ordered not just once but twice, that they failed to obtain correct drug licenses and that part of the problem and what was causing these issues was paranoia about what’s going on. The secrecy, the level of secrecy, I want to say this and quote from our report because I think this hits the nail on the head what we’ve been talking about. During that grand jury investigation, one of the deputy general counsel to the governor of Oklahoma testified and said, “When you say completely hidden in state government in the same sentence, you’ve got a problem.” And I think that really does hit what we’ve been talking about here on this podcast and the problems that we see that when we’re looking at the government again, for the people, by the people, that the people should know what’s going on. And states shouldn’t be hiding information about the most serious punishment that they carry out against their citizens.

Robert Dunham 48:02

One of the things that we worry about always is not just government incompetence, but also bad faith. In Nevada, there was controversy over how Nevada got its drugs to attempt to execute Scott Dozier. A trial court found that they had engaged in subterfuge and bad faith to mislead the pharmaceutical company into supplying drugs when they knew full well, because they had received notice from the company, that the drugs were not to be used for anything but medical purposes. In the Oklahoma case that you mentioned, the general counsel to the governor wanted to go forward with the execution of Richard Glossip even after he knew that the execution would violate Oklahoma’s protocol, that he knew it was the wrong drug and he was banking on the public not ever finding out.

Robin Konrad 50:39

We’ve seen in other states, the Departments of Corrections, obtaining drugs under false pretenses. In Ohio and in Louisiana, the Department of Corrections has ordered drugs saying that it’s for medical purposes as opposed to saying that it’s for lethal injection and execution, which is really different. When they want the drugs to be shipped to the medical facility of a prison, as opposed to we need these drugs for purposes of carrying out executions.

Ngozi Ndulue 51:09

Can our capital punishment system function if we actually include the transparency and accountability measures that we know are missing in so many of the states that are carrying out executions today?

Robin Konrad 51:24

That’s the big question, right? And what I’ve mentioned earlier about how the Eighth Amendment requires evolving standards of decency. Ultimately, what are the states afraid of? What are they afraid of? If the public supports the death penalty, then the public should know exactly what’s happening, how these executions are being carried out, and the state shouldn’t be afraid of it. And if the states are afraid that the public no longer approves of the death penalty, then we have a bigger question to answer and only the courts or the legislatures would be able to answer that question and say, have we moved as a society beyond accepting capital punishment as a viable punishment when people commit serious crimes. It’s important to say what’s going to happen if states are transparent. Will we ever know? I’m not sure if we’ll see a time when states will be transparent because, as we’ve talked about over this podcast, when we’ve seen problems, the state’s response isn’t to be more transparent. But ultimately, that should be left up to the public and to the the members of the state legislatures to decide whether capital punishment as it’s happening, as these executions are occurring, whether they still want this as a punishment.

Robert Dunham 52:46

If you can’t do the death penalty openly and honestly, you shouldn’t do the death penalty. The Death Penalty Information Center doesn’t take a position for or against the death penalty itself, but we are critical of the way in which it’s administered and 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. And over and over and over again, the states have shown that, at least as they are handling executions right now, they aren’t trustworthy.

Ngozi Ndulue 53:29

I’d like to make sure that we open up this conversation to a little broader than what was in our secrecy report, about secrecy and executions, to talk about how secrecy throughout the capital punishment process. From pre-trial to appeals, post conviction, is actually affecting the entire administration of the death penalty in the United States.

Robin Konrad 53:55

We’ve seen secrecy in situations, a law called Brady vs. Maryland. So when a government is prosecuting a defendant, so if you have a criminal defendant and the government has a duty to turn over what’s called exculpatory evidence and this is what we call the Brady rule. That is information that could potentially help the defendant. The state has consistently hidden information that would be helpful to the defendant because that hurts the state’s case. And we’ve seen that repeatedly in capital punishment cases. We’ve seen it throughout the criminal justice system. Rob, do you want to talk more specifically about examples of Brady cases?

Robert Dunham 54:39

Well, the single most prevalent cause of wrongful capital convictions is police or prosecutorial misconduct. As you said, concealing exculpatory evidence is one of the most frequent grounds for finding misconduct. Police records never get turned over to the defense. There are numerous cases where people end up being exonerated because police records eventually come to light. Usually not with the consent and cooperation of the prosecution. They show that there’s a witness who identified somebody else. There was, especially in the case of prison informants, somebody who had a vested interest that was never disclosed. They got a deal for their testimony or the state knows about mental illness for one of his witnesses and doesn’t disclose that. In one Philadelphia case, a death sentence was overturned and a new trial was granted, but it took more than 20 years. And the reason that the death sentence was overturned and a new trial granted was because the state had a witness who was mentally ill to the point that he needed to be hospitalized. They didn’t disclose any of his history. They brought him into testify. Then, after he testified, they drove them to a mental hospital. You know, that’s ridiculous!

Robin Konrad 55:59

Right.

Robert Dunham 56:00

And that’s not an isolated story.

Robin Konrad 56:03

We had, on a podcast at DPIC, Brian Stolarz, who was the attorney for Alfred Dwayne Brown in Texas, who spent over a decade on Texas death row. And, it was only through hours and hours and hours of attorneys spending time and investigation and going to talk to witnesses repeatedly, that they found out that there was police misconduct. And they even found a box of exculpatory material in some retired police officer’s or prosecutor’s garage after he had left the state. That type of information, they would have never uncovered and an innocent man would have been executed but for those hours, hundreds and hundreds and hundreds of hours, and those of you interested in hearing more about that case check out DPIC’s podcast on that.

Robert Dunham 56:55

Another area where the secrecy comes into play is surpression of other kinds of prosecutorial records. In the case of Foster vs. Chatman, which was a case where the defendant won a new trial because of an undisclosed history of race discrimination in jury selection by the prosecutor. It turns out the evidence of discrimination was hidden from the defense, prosecution lied to the courts for years about the reasons why they struck black jurors. And only in a Freedom of Information Act request, well after the original trial, well after the original appeal, did the defense get a hold of the prosecution’s notes and the notes had all sorts of information, highlighted all the black jurors, none of the white jurors, indicated that there is no way that they were going to accept any of the black jurors. It even mimicked a series of excuses for striking black jurors that had been given to the prosecutor during a training session. All of this suggests the need for Open File policies and that would be a major, major improvement. You would still have some records that are intentionally hid. But certainly the stuff that is not turned over by inadvertence and some things where prosecutors look at the document and they say, well, I don’t really think this is exculpatory and in good faith, they don’t turn it over. But it turns out that there’s information the defense has that relates to that document, that makes it exculpatory. An open file policy would eliminate a lot of that problem. It would certainly cut years off of a lot of the death pending litigation, because it’s often decades before this new evidence comes to light. But there’s also something else about openness and lack of openness. We’re talking about whether somebody should live or die. Those decisions shouldn’t be made in the dark. There is a premium, not just as a matter of public policy, but I think as a moral manner and in an ethical manner. There’s a premium on getting it right, getting to the truth. If you’re going to sentence somebody to death, then they should truly deserve it. And we should have access. The public and all the parties should have access to the information that tells us what the truth is. We see over and over again, even now, 20 years after the advent of DNA testing, that courts are not allowing DNA testing. What’s the harm? And prosecutors are opposing new advanced testing in cases. What’s the harm? If the issue is, did we get the right guy? If the issue is, he’s the one who’s the most culpable in the case, then everybody has a right to know. And we should be mandating DNA testing, we should be mandating modern testing across the board in the forensic sciences, rather than having these ongoing fights, because somebody can have a procedural advantage by preventing the truth from coming out. If we want to have the death penalty, let’s tell the truth. If we want to have the death penalty, let’s have government actors who are honest. If we’re going to have the death penalty, let’s do it fairly and openly.Secrecy and all these things that make the death penalty hidden just undermine that.

Ngozi Ndulue 1:00:29

When we are talking about things that are shielded from public debate, one of the things that we talked about but often don’t have all the facts to be able to truly assess is both police and prosecutorial misconduct. Prosecutors who have a pattern of violations but when courts are assessing those violations, they are often thinking about them as one off situations as opposed to seeing the totality of that. And we have a case in the United States Supreme Court right now, Flowers vs. Mississippi, where there is that question. Where the same prosecutor who is continually being overturned for prosecutorial misconduct, who has been told by at least two courts over a number of retrials of the same person that he has unconstitutionally struck black jurors based on race. Where that prosecutor’s able to continue to do that year after year after year without a true public reckoning about that. And that the ways that our courts operate, in the ways that our president has operated has allowed that to continue. And then another example of that is also about prosecutors that have lists of untrustworthy police officers that have been internal documents that have not been shared, either with defense attorneys or with the general public, that’s really having a big picture debate about how to actually ensure that policing is occurring in a way that is there and promotes the administration of justice. So when we think about those pieces of police, and prosecutorial misconduct, the effect that they have on wrongful convictions, the effect that they have on the wrongful imposition of the death penalty. And those are two areas where we’re seeing secrecy, shielding people, not just in individual cases, but shielding the process from public debate about whether we are actually administering justice in our legal system. When we’re thinking about secrecy in our report, when we have that slice that we’re talking about, slice of secrecy, in executions and lethal injection. There’s really a much larger conversation that this is just one piece of.

Robin Konrad 1:02:41

It’s certainly just the end piece. Literally.

Robert Dunham 1:02:45

Well, Robin, I think it’s the end piece in more ways than one because our time for the podcast is up, but I want to thank you. It’s always a pleasure having you back in our offices.

Robin Konrad 1:02:54

Oh, thanks so much. It’s great to be back.

Robert Dunham 1:02:56

And thank you all for listening to this edition of Discussions with DPIC. For more information about the death penalty, visit our website at www.deathpenaltyinfo.org. To read Behind the Curtain: Secrecy in the Death Penalty United States, go to our web page and go to the link for reports. You can find it there. And to make sure you never miss an episode of Discussions with DPIC, subscribe to our podcast with your podcast app of choice.