Behind the Curtain: Secrecy and the Death Penalty in the United States
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.
All 17 States Carrying Out Recent Lethal Injections Withheld At Least Some Information About the Execution Process
(Washington, D.C.) The Death Penalty Information Center today released a new report, “Behind the Curtain: Secrecy and the Death Penalty in the United States.” The intensive study documents the laws and policies that states have adopted to keep information about executions inaccessible to the public, to pharmaceutical companies, and to prisoners facing execution. Among the key findings:
- Since January 2011, 13 states have enacted new secrecy statutes that conceal vital information about the execution process.
- Of the 17 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 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 17 states guaranteed that witnesses knew when each drug was administered.
- Botched or problematic executions have increased as states experiment with new drug combinations, including midazolam. In 2017, more than 60 percent of the executions carried out with midazolam produced eyewitness accounts of the execution going amiss.
The report found that, in their efforts to obtain execution drugs, states have used secrecy laws to conceal evidence that they have broken state and federal laws, deliberately induced contract breaches, lied to or misled legitimate drug suppliers, contracted with shady international suppliers and questionable domestic pharmacies, and swapped drugs with each other without proper storage and transport controls. State officials also have refused to answer questions about clearly botched executions and problems in executions caused by the use of inappropriate execution drugs, claiming secrecy privileges.
“Over and over again, states have violated the law in the name of carrying out the law,” DPIC Executive Director Robert Dunham said. “When the public has uncovered information the states have tried to conceal, it has exposed an ever-expanding scope of misconduct and incompetence. ‘Trust me, I’m the Government’ is not an acceptable justification for execution secrecy.”
The DPIC report also found that secrecy laws have undermined the reliability and legitimacy of court proceedings in which prisoners have challenged state execution practices as violating the Constitution’s ban on cruel or unusual punishments. Recently, in litigation over the constitutionality of Tennessee’s lethal-injection drug combination, secrecy prevented the prisoners from demonstrating that the drug pentobarbital—already in use in several states—was available as an alternative to a three-drug combination that prisoners said would amount to eighteen minutes of torture. This led one prisoner to elect execution by electrocution instead of the three-drug injection. As one Tennessee Supreme Court justice wrote, the state’s refusal to provide information or answer questions as to the availability of pentobarbital rendered “the trial court proceedings [in the case] meaningless.”
Of particular note, several states obtain executions drugs from compounding pharmacies, which are not subject to the same regulations as large manufacturers, and conceal the identity of the pharmacy. Recent executions in South Dakota and Texas have raised questions—unanswered because of state secrecy—about the quality of drugs believed to have been produced or supplied by compounders. When the compounding pharmacies’ identities have been discovered in the past, the report said, that disclosure has also revealed significant issues about the safety or efficacy of the companies’ products.
The report concludes: “It is impossible to know whether current methods of execution are consistent with evolving standards of decency if methods are kept secret. When states hide information in a deliberate effort to keep the people ignorant, America looks less and less like the democratic society it was founded to be.”
“Behind the Curtain: Secrecy and the Death Penalty in the United States” is available at https://deathpenaltyinfo.org/files/pdf/SecrecyReport.pdf. The principal author of the report is Robin Konrad with editing by Robert Dunham, DPIC’s Executive Director, and Ngozi Ndulue, Director of Research and Special Projects.
The Death Penalty Information Center is a non-profit organization serving the media and the public with analysis and information on issues concerning capital punishment. DPIC was founded in 1990 and prepares in-depth reports, issues press releases, conducts briefings for the media, and serves as a resource to those working on this issue.
The Lethal Injection Information Center, www.http://lethalinjectioninfo.org/