January 29, 2015

Private: Botched Executions & the Problem of Lethal Injection Secrecy

by Eric Berger, Associate Professor of Law, University of Nebraska College of Law

The U.S. Supreme Court last week granted certiorari in Glossip v. Gross, in which plaintiffs challenge the constitutionality of Oklahoma’s lethal injection procedure.  Glossip raises important questions about how the Eighth Amendment standard announced by the Court in 2008 in Baze v. Rees applies to experimental drug combinations.  However, the questions presented in Glossip do not directly address the crucial, related question of whether states must disclose their lethal injection procedures to inmate plaintiffs.  To this extent, the Court is putting the cart before the horse.

Indeed, many death row inmates lack important information about the procedures with which the state plans to execute them.  The problem appears to be worsening as states increasingly conceal more details of their execution procedures.  Courts, for their part, usually reject inmates’ requests to learn this information. 

In a recent law review article, I argue that these state practices and judicial responses are wrong.  To be sure, some execution procedures, upon closer examination, may be safe and constitutional, but some certainly are not, and courts have no way of distinguishing the safe from the dangerous without inquiring into the details of the procedure.  To this extent, courts have repeatedly blessed execution procedures about which they know virtually nothing.

Were courts to look more closely, they would learn that many states’ lethal injection procedures create a serious risk of excruciating pain.  In the past two years, there have been botched executions in South Dakota (Eric Robert), Oklahoma (Michael Lee Wilson and Clayton Lockett), Arizona (Joseph Wood) and Ohio (Dennis McGuire).  The failures have occurred in one-drug, two-drug and three-drug procedures, and they have sometimes been gruesome.  Clayton Lockett, for instance, twitched, gasped and convulsed violently on the gurney.  Joseph Wood gasped 600 times and took nearly two hours to die. 

These botches are consistent with dangers that critics have long identified.  States have had difficulty with a variety of tasks necessary for safe executions, such as correctly mixing the drugs, properly inserting the catheter into the inmate’s vein and accurately determining inmates’ anesthetic depth.  In recent years, as large pharmaceutical companies have refused to provide drugs for executions, states have turned to compounding pharmacies, which often lack the basic infrastructure and processes to safely produce the requested drugs.

Despite these dangers and the history of botches, many courts have denied inmates’ efforts to access details of lethal injection procedures.  In so doing, these judges have ignored important legal principles militating for disclosure.  For one, civil plaintiffs enjoy broad access to discovery, with which state privilege laws cannot interfere in federal question cases.  From this perspective, inmates bringing lethal injection challenges should receive information about execution procedures under the ordinary rules of civil discovery.

Due process arguments make this right to discovery even stronger.  Death row inmates unquestionably possess an Eighth Amendment right protecting them against execution methods creating a substantial risk of serious harm.  This right, however, only has force if courts enjoin dangerous execution procedures before executing an inmate.  State secrecy, then, effectively prevents inmates from safeguarding their Eighth Amendment rights.

In a variety of contexts, the Supreme Court has emphasized that due process and basic fairness demand that litigants receive notice of the state’s plans for them and an opportunity to challenge those plans.  The Court has similarly recognized a right to information where an individual needs such information to protect a threatened constitutional right.  Moreover, the protection of a substantive right sometimes depends not only on the contours of the right itself but also on whether the government’s procedures are sufficiently sensitive to the right in question.

It is true that states resisting disclosure have some legitimate interests that courts understandably want to protect.  For instance, increased scrutiny of lethal injection procedures may unmask the identities of the execution team members.  Similarly, courts worry that disclosure will scare away pharmacies from supplying drugs for executions.  

While these concerns reflect legitimate state interests, they also overstate the problem.  Indeed, courts are fully capable of fashioning procedures, such as neutral chemical testing and protective orders, which grant inmates the evidence they need to evaluate the safety of execution procedures while guarding against public dissemination of sensitive information, such as executioner and pharmacy identities.

Unfortunately, courts and states usually treat disclosure as an all-or-nothing proposition.  It needn’t be.  Courts, rather, can force states to disclose important information that will allow inmates to assess the safety of states’ lethal injection procedures without compromising sensitive state information.  Given the due process and Eighth Amendment principles at stake, it is time that they start doing so.

Criminal Justice, Death Penalty, Supreme Court