Two Legislatures, Two Divergent Approaches to Execution Transparency

After con­tro­ver­sial exe­cu­tions raised ques­tions of gov­ern­ment com­pe­tence or mis­con­duct, leg­is­la­tures in two states have respond­ed with bills tak­ing sharply dif­fer­ent approach­es to the ques­tions of gov­ern­ment account­abil­i­ty and public oversight. 

Following an exe­cu­tion in which Nebraska Department of Corrections offi­cials closed the cur­tain on four­teen cru­cial min­utes of the exe­cu­tion of Carey Dean Moore, the Nebraska Senate Judiciary Committee heard tes­ti­mo­ny on March 7, 2019 on a bill that would man­date that two leg­is­la­tors wit­ness an exe­cu­tion and require that eye­wit­ness­es be per­mit­ted to observe the entire­ty of an exe­cu­tion from the moment the con­demned pris­on­er enters the exe­cu­tion cham­ber to the time death is declared or the exe­cu­tion is called off. By con­trast, an Arkansas state sen­a­tor has respond­ed to a law­suit by phar­ma­ceu­ti­cal com­pa­nies chal­leng­ing wide­spread impro­pri­eties in the state’s pro­cure­ment of exe­cu­tion drugs with a pro­pos­al that the state adopt the most extreme and puni­tive drug-secre­cy law in the country.

In her state­ment to the Judiciary Committee, Nebraska State Sen. Patty Pansing Brooks of Lincoln (pic­tured, left), who spon­sored Legislative Bill 238, said leg­is­la­tion was nec­es­sary to redress the ​“pro­found” lack of trans­paren­cy in the state’s exe­cu­tion process. ​“This bill is not about whether the death penal­ty is right or wrong,” she said, ​“it’s about whether we have prop­er gov­ern­ment account­abil­i­ty and trans­paren­cy in car­ry­ing out this grave and somber event.” 

Corrections Director Scott Frakes, whom com­mit­tee mem­bers crit­i­cized for fail­ing to appear per­son­al­ly to respond to ques­tions about the Moore exe­cu­tion, sent a let­ter to the com­mit­tee oppos­ing the bill. Omitting ref­er­ence to the peri­ods of the exe­cu­tion in which the exe­cu­tion-IV line was insert­ed and the cur­tain was dropped, Frakes claimed that “[w]itnesses observe the entire execution process.” 

Referring leg­is­la­tors to the Death Penalty Information Center’s November 2018 report on exe­cu­tion secre­cy in the United States, DPIC Executive Director Robert Dunham told the com­mit­tee of numer­ous inci­dents in which eye­wit­ness obser­va­tions could have resolved seri­ous ques­tions about prob­lem­at­ic exe­cu­tions. Dunham told the com­mit­tee that in a gov­ern­ment by and for the peo­ple, the state ​“should­n’t hide impor­tant infor­ma­tion from the people.”

In Arkansas, a bill intro­duced in the state sen­ate sought to fur­ther con­ceal the state’s con­tro­ver­sial exe­cu­tion prac­tices. On March 6, the Senate Judiciary Committee approved a bill spon­sored by State Sen. Bart Hester (pic­tured, right), that would broad­ly exclude from pub­lic dis­clo­sure any doc­u­ments, records, or infor­ma­tion that could lead to the dis­cov­ery of the state’s sources of exe­cu­tion drug or the iden­ti­fi­ca­tion of drug man­u­fac­tur­ers or dis­trib­u­tors. The bill also would make reck­less dis­clo­sure of such infor­ma­tion a felony. 

Arkansas’s con­duct in procur­ing exe­cu­tion drugs, which led drug dis­trib­u­tor McKesson Medical-Surgical to sue the state alleg­ing that Arkansas had delib­er­ate­ly mis­led the com­pa­ny to believe that the drug pur­chase was for legit­i­mate med­ical pur­pos­es, raised ques­tions con­cern­ing the need for trans­paren­cy in the exe­cu­tion process. Those ques­tions were height­ened fol­low­ing evi­dence of addi­tion­al prob­lems dur­ing exe­cu­tions with those drugs.

After Arkansas state courts ruled that the state’s pris­ons must dis­close por­tions of the phar­ma­ceu­ti­cal drug and pack­ag­ing labels for the drugs it intend­ed to use in exe­cu­tions, the Department of Corrections said it was sus­pend­ing its search for new sup­plies of exe­cu­tion drugs until the leg­is­la­ture adopt­ed even broad­er secrecy laws.

Hester down­played the impor­tance of trans­paren­cy con­cerns, call­ing a March 8 meet­ing of a leg­isla­tive Freedom of Information Act Task Force ​“a waste of my time.” Refusing to attend the meet­ing, Hester said “[a]nything that they have to say on it I don’t think has value.” 

In an email to the Associated Press, Dunham said, ​“If a state want­ed to break the law and breach con­tracts with impuni­ty and hide its mis­con­duct from the pub­lic, [the Arkansas bill] is the type of bad-gov­ern­ment law it would pass.”