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://​death​penal​ty​in​fo​.org/f…. 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.

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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.