“Democracies die behind closed doors. When the government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation.”— Judge Damon J. Keith, 2002.
American democracy is founded on both government transparency and checks and balances. Thomas Jefferson wrote, “power must never be trusted without a check”. By the same token, John Adams said, “liberty cannot be preserved without a general knowledge among the people”. And Founding Father Patrick Henry notably declared, “the liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them”. Our founders believed in a transparent government. This means the population maintains the right to know how they are being ruled and has total access to information on governance.
In the wake of 9/11, a large debate unfolded surrounding what the government can and cannot do in secret. Revelations by Edward Snowden alleged that the US government was conducting mass surveillance on telephone calls and Internet usage. Some argued the government must do what it needs to do to protect national security, even if that means secretly spying on citizens. Others were appalled, and claimed that the government could never infringe on the rights of its citizens in secret and without their consent. We frequently hear the arguments on both sides of the secrecy debate surrounding national security. But there is another system with shrinking transparency in the United States that gets less attention: our capital punishment system.
Almost a dozen states, including Tennessee, Georgia, Oklahoma, Missouri, Louisiana, and Arizona, have already passed secrecy laws or having pending secrecy laws surrounding their use of capital punishment. These laws allow for states to hide which drugs will be used in lethal injection procedures, where the lethal injection drugs are obtained from, and the names of the individuals carrying out the executions. In reality, this means that inmates do not know how they will be executed.
This all began with the European Union. In 2005, the EU banned the export of any products used "for the purpose of capital punishment or for the purpose of torture”. The body hoped to be the “leading institutional actor and the largest donor to the fight against the death penalty”. Next, in 2011, manufacturers of sodium thiopental – the key ingredient in the lethal “cocktail” states used to execute – announced they would stop making the drug. These manufacturers had faced objections and public backlash about the drug’s use for capital punishment. This led to drug shortages in the US, forcing state officials to find new drugs from new sources. States began to scramble to find different combinations of lethal injection drugs. In turn, defense attorneys across the country pressed for information about the drugs that were going to kill their clients.
States responded to this growing pressure by passing secrecy laws. These laws give drug manufacturers anonymity in order to protect them from protests or boycotts. Behind closed doors, states turned to “compounding pharmacies” for their drug supplies. Compounding pharmacies, which are not regulated by the FDA, are known for skirting federal and state regulations, and risk producing contaminated drug batches.
Let’s take the case of Missouri as an example of the trend. Missouri, like other US states, was unable to obtain sodium thiopental after manufacturers stopped making the drug. The state began to create a new plan which declared propofol (a drug that designed to put people to sleep) as part of its lethal injection cocktail. The EU then threatened to restrict all propofol to the United States – which would have led to a medical disaster: propofol is used in about 95 percent of surgical procedures requiring an anesthetic, according to the American Society of Anesthesiologists. Missouri turned to a “Plan B” – to use an injection of 5-10 grams of pentobarbital and to rely on a compounding pharmacy to obtain the drug. Pentobarbital is an untested drug, and there is little knowledge on the drug’s quality. A group of prisoners filed a civil case against George Lombardi, the director of the Missouri Department of Corrections, asking for (1) the identities of the physician who prescribed the chemical used in the executions, (2) the pharmacist who compounds the chemical, an (3) the laboratory that tests the chemical for potency, purity, and sterility. These inmates simply wanted information, specifically about the compounding pharmacies creating the drugs for lethal injection. St. Louis Public Radio has written the following summary on the case, which highlights the problems with compounding pharmacies.
"The quality of compounded drugs, unlike manufactured drugs, varies from batch to batch. Inspections by the Missouri Board of Pharmacy have found that about one out of every five drugs made by compounding pharmacies fails to meet standards. Lawyers representing death-row inmates argue that the identity is important, so they can find out if the pharmacy has been cited for shoddy practices or is even properly licensed. The inmate's pharmacy expert also points out the lab report found an unknown substance in the drug, but the lab still approved it."
In the end, the majority opinion found that the defendant’s didn’t prove that the new lethal injection plan was the “worst of all known and available alternatives”, thereby ruling in favor of Director George Lombardi. The reality of the ruling is that no one will ever evaluate the drugs that will be used in upcoming Missouri executions. Death row inmates, their families, and the general public will not know the sources or the safety of the drugs used to execute.
What happened in Missouri is not isolated. In Georgia, lawmakers passed a law that keeps information on lethal injection a secret, even from Georgia’s own judiciary. The Georgia Supreme Court upheld the state's secrecy law on May19, 2014. In Oklahoma, the highest court ruled that the state’s secrecy laws were constitutional on April 25, 2014. And in Tennessee, legislators passed a bill allowing the state to withhold all information about death penalty drugs (legislators in TN have also passed a bill which mandates the electric chair to be used if lethal injection drugs are unavailable).
What resulted from this lethal injection madness? There was a noticeable increase in botched executions.
There was the execution of Dennis McGuire. Dennis McGuire was killed by the state of Ohio on January 16, 2014. McGuire gasped for air for 10 to 13 minutes, and witnesses report that he was snorting, choking, and appeared to be writhing in pain.
Then there was Clayton D. Lockett. Clayton Lockett was killed by the state of Oklahoma on April 29, 2014. His attorneys had warned of the dangers of using new experimental drugs. Lockett and another inmate sued the state, saying he wanted to know the source of the drugs used and to be assured that his death would not be cruel and unusual. After many court battles, the Supreme Court ruled that Oklahoma's secrecy law was constitutional, and that Lockett (and another inmate) could be executed using drugs that had never been used before. Oklahoma went on to execute. After the drugs were injected, Lockett “began breathing heavily, writhing on the gurney, clenching his teeth and straining to lift his head off the pillow”. It took Lockett 43 minutes to die before finally dying of a heart-attack. Officials lowered the blinds half-way through the execution to prohibit witnesses from seeing what was going on.
And there was Joseph R. Wood. Joseph Wood was killed by the state of Arizona on July 23, 2014. Wood repeatedly gasped for one hour and 40 minutes, and a reporter who witnessed the execution said that he counted 640 gasps from Wood before he finally died.
The botched executions highlight the need for more transparency and less secrecy. There is no doubt that the botched executions – resulting from state secrecy – amount to cruel and unusual punishment. No individual, no matter the crime, should have to suffer for nearly two hours before finally dying at the hands of the state. Attorney General Eric Holder, in light of the three botched executions occurring over a six month period, has said, “for the state to exercise that greatest of all powers – to end a human life – it seems to me, just on a personal level, that transparency would be a good thing and to share the information about what chemicals are being used, what drugs are being used”.
What is happening instead? Everyone is still in the dark. The inmates themselves do not know the procedures for how they will be executed. Eleven death row inmates are suing the state of Tennessee over its secrecy laws, and it remains to be seen what will come from the case. Christopher Lee Price, a death row inmate in Alabama, filed a federal lawsuit saying that Alabama’s new and untested protocol is cruel and unusual punishment. Furthermore, the general public is being kept in the dark: the state of Oklahoma has reduced the number of witnesses that are allowed to watch an execution from twelve to five. States are becoming more secretive and transparency is shrinking. Katie Fretland, a reporter at The Observer and The Guardian puts it perfectly. “The government shouldn't be allowed to effectively blindfold us when things go wrong. The public has a right to the whole story, not a version edited by government officials.”
Democracies die behind closed doors. The argument rings true again. Whether it’s using secretive tactics to end a life or reducing the number of witnesses allowed at an execution, a policy of unfettered government secrecy is wrong. Secrecy undermines the most basic principles of American democracy, and we should fight to live in a country that is open and honest with its citizens. The other countries that continue to practice capital punishment – North Korea, China, the DRC – are considered some of the most authoritarian and restrictive governments on Earth. The United States has always prided itself on being one of the strongest and most flourishing democracies in the world. So we must continue to improve our governance to make the most informed, effective, and efficient decisions possible. And we can start by repealing state secrecy laws.
The NCADP has created the 90 Million Strong campaign to unite the voices of those who believe the death penalty is wrong. We need to demonstrate that the broad public support to end this practice is already here in America, and 90 million people speaking up can make a difference.
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