Veil of Execution Secrecy Expands in Several Southern Death-Penalty States

Three south­ern states have tak­en action to lim­it the public’s access to infor­ma­tion relat­ing to exe­cu­tions by increas­ing secre­cy sur­round­ing lethal-injec­tion drug sup­pli­ers. On April 12, 2019, the Texas Supreme Court reversed an ear­li­er deci­sion that would have dis­closed the source of lethal-injec­tion drugs used to car­ry out exe­cu­tions in Texas in 2014, assert­ing that dis­clo­sure ​“would cre­ate a sub­stan­tial threat of phys­i­cal harm to the source’s employ­ees and oth­ers.” On April 9, Arkansas Governor Asa Hutchinson signed into law one of the most expan­sive and puni­tive exe­cu­tion secre­cy laws in the nation, con­ceal­ing the iden­ti­ty of lethal-injec­tion drug sup­pli­ers from the pub­lic and crim­i­nal­iz­ing dis­clo­sure of exe­cu­tion-relat­ed infor­ma­tion. Act 810 exempts lethal-injec­tion records from the state’s Freedom of Information Act and makes the inten­tion­al or reck­less dis­clo­sure of the exempt­ed infor­ma­tion a felony. In Louisiana, amidst par­ti­san feud­ing over the rea­sons the state has not car­ried out exe­cu­tions, a bill that would make secret the source of exe­cu­tion drugs was referred to the House Committee on Administration of Criminal Justice on April 8, the first day of the 2019 Louisiana state leg­isla­tive ses­sion. Democratic Governor John Bel Edwards, who vot­ed against a sim­i­lar bill five years ago while serv­ing as a state leg­is­la­tor, indi­cat­ed that he would like­ly sign the mea­sure. Louisiana’s leg­is­la­ture is also con­sid­er­ing two bills that would abol­ish cap­i­tal punishment.

The Texas Supreme Court deci­sion marked the cul­mi­na­tion of sev­er­al years of lit­i­ga­tion over the state’s lethal-injec­tion secre­cy pol­i­cy. A Texas dis­trict court and a state court of appeals both ordered dis­clo­sure of the drug supplier’s iden­ti­ty, and the Supreme Court ini­tial­ly upheld those low­er court rul­ings. The state asked for a rehear­ing, argu­ing that dis­clo­sure would have ​“poten­tial­ly dev­as­tat­ing con­se­quences” to pub­lic safe­ty. The rehear­ing took place after BuzzFeed News revealed through inves­tiga­tive report­ing that the state had obtained lethal-injec­tion drugs from Greenpark Compounding Pharmacy, a Houston based com­pound­ing phar­ma­cy with a his­to­ry of safe­ty vio­la­tions. When the compounder’s iden­ti­ty was revealed, activists peace­ful­ly protest­ed out­side the phar­ma­cy. Attorney Ari Cuenin, argu­ing for the state, said that protests, along with alleged threats, had con­vinced phar­ma­cies not to pro­vide drugs to the state. The state called the phar­ma­cy a ​“soft tar­get” in an ​“urban area, whose only defense is its anonymity.”

A num­ber of states have assert­ed that anti-death-penal­ty activists have intim­i­dat­ed phar­ma­cies and major phar­ma­ceu­ti­cal com­pa­nies into refus­ing to sup­ply drugs for exe­cu­tions and have argued in leg­isla­tive debates and in lit­i­ga­tion that these alleged threats jus­ti­fy exe­cu­tion secre­cy. In its secre­cy bill, the Arkansas leg­is­la­ture alleged with­out evi­dence that ​“there is a well-doc­u­ment­ed gueril­la war being waged against the death penal­ty” and that “[a]nti-death penal­ty advo­cates have pres­sured phar­ma­ceu­ti­cal com­pa­nies to refuse to sup­ply the drugs used by states to car­ry out death sentences.” 

In fact, call­ing the use of their med­i­cines in exe­cu­tion con­trary to their med­ical mis­sion, sev­er­al drug com­pa­nies have sued Arkansas or filed friend-of-the-court briefs alleg­ing that the state engaged in mis­rep­re­sen­ta­tions and sub­terfuge to improp­er­ly obtain their drugs. Independent media and law enforce­ment inves­ti­ga­tions have con­clud­ed that the alleged threats against drug man­u­fac­tur­ers and sup­pli­ers have been unfound­ed or gross­ly exag­ger­at­ed. A 2016 BuzzFeed News inves­ti­ga­tion revealed that FBI records debunked an alleged threat that Texas and Ohio claimed estab­lished the need for secre­cy. That sup­posed threat was an email from a uni­ver­si­ty pro­fes­sor who pro­vid­ed his name and phone num­ber and warned an Oklahoma phar­ma­cy to take safe­ty pre­cau­tions. The email was one of three pieces of evi­dence, along with a blog post and com­ments left on the web­site of a pre­vi­ous sup­pli­er, that the Texas court relied on in its deci­sion. ​“There is no evi­dence of a his­to­ry of spe­cif­ic threats to that par­tic­u­lar phar­ma­cist or phar­ma­cy because the source’s iden­ti­ty has been kept con­fi­den­tial,” the court wrote. ​“Thus, the ques­tion before us in this case is whether the mere fact that the pub­lic knows that the Department is receiv­ing lethal injec­tion drugs from some source, who­ev­er it might be, is enough to con­clude that a sub­stan­tial threat of phys­i­cal harm will come to bear on the source of the drugs if the iden­ti­fy­ing infor­ma­tion is made public.”

(Keri Blakinger, Name of lethal injec­tion sup­pli­er can be kept secret, Texas Supreme Court decides, Houston Chronicle, April 12, 2019; Julia O’Donoghue, Measure could make it eas­i­er for La. to car­ry out death penal­ty, NOLA Media Group, April 16, 2019; View from the Senate: Lethal Injection Records to Become Confidential, AMP News, April 12, 2019.) Read the Texas Supreme Court deci­sion in Texas Dept. Crim. Justice v. Levin et al. and DPIC’s November 2018 report, Behind the Curtain: Secrecy and the Death Penalty in the United States. See Lethal Injection, Secrecy, and Recent Legislation.