Lethal Secrecy

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After months of fighting for information about the drugs Oklahoma intended to use to kill them, Clayton Lockett, a man convicted of murdering a 19-year-old woman in 1999, and Charles Warner, on death row for raping and murdering an 11-month-old in 1997, were scheduled for execution April 29. It was to be the first double-execution in the state of Oklahoma in 80 years.

Due to the state’s secrecy statute prohibiting the disclosure of information about execution drugs, the pair was unsuccessful in their attempts to learn what would be used to execute them, despite an initial favorable ruling from the highest court in the state of Oklahoma.

Lockett was to be executed first, followed by Warner two hours later. On April 29, Lockett was declared unconscious 10 minutes after midazolam, the first of the state’s untested three-drug protocol was administered. Three minutes later, however, he began breathing heavily, struggling, speaking unintelligibly and straining to lift his head. The second two drugs in the protocol had begun to enter his body.

The execution was halted 27 minutes after the first drug was administered due to Lockett’s obvious distress, but Lockett later died of a massive heart attack.

Oklahoma Governor Mary Fallin stayed Warner’s execution pending a review of the state’s lethal injection protocol.

Earlier this year in Ohio, the 24-minute execution of Dennis McGuire, who exhibited many of the same reactions as Lockett, led to a myriad of public information requests by death row inmates as to the type and source of the drugs with which they were to be executed.

Among those requests were those made by Lockett and Warner.

However, the U.S. Supreme Court has consistently declined to review cases involving death row inmates’ right of access to information regarding the drugs that states will use to execute them. Specifically, inmates are seeking information disclosing the identity of the drug manufacturers, as well as any other information that could help track the states’ purchase of the drugs.

Inmates say they need to know whether the drugs have been tested and whether they are expired in order to know whether they will perform their function safely and with minimal pain. Open government advocates argue there should also be a public right of access to the information under state freedom of information laws.

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These cases are not unique. Journalists across the country are beginning to seek greater access to states’ lethal injection protocols and further information about the manufacture and supply of lethal injection drugs. Meanwhile, inmates are pursuing public information requests seeking similar information in order to pursue claims against cruel and unusual punishment.

The legal arguments

Recently, these cases have mostly been argued on grounds that denial of the information violates inmates’ Eighth Amendment rights against cruel and unusual punishment, by risking pain and suffering due to the use of untested drugs that may not be efficient, and inmates’ Fourteenth Amendment right of due process, by not giving inmates enough information to exercise their appeal rights.

However, in addition to challenges on Eighth and Fourteenth Amendment grounds, plaintiffs are arguing that they have a right to the information under freedom of information laws. Such laws give the public access to a broad range of government records. Further, plaintiffs have argued that an implicit First Amendment right of access to this information exists, as the First Amendment is largely premised on the right to informed public discussion of public affairs.

“Courts are viewing this as an Eighth or Fourteenth Amendment issue and they’re not dealing with it as a First Amendment issue. But it’s a First Amendment issue both for the person being executed as well as for the general public; for instance, for the press,” said Muhammad Faridi, an expert on lethal injection right of access issues who represented one of the death row inmates in a case in Missouri on these issues earlier this year.

But state governments say there are important justifications for secrecy in this context. States fear that if they are required to reveal the identities of the pharmacies supplying execution drugs that those pharmacies will come under attack from the public, through social backlash or even physical harm. States also justify the secrecy statutes by claiming that if the identities were revealed, the backlash might be so severe that the pharmacies would decide against producing the drugs.

Rationed drugs and new protocols

The recent trend in formal requests for this information comes as states are turning to new sources for execution drugs and are trying to protect those providers from public scrutiny. Many pharmacies that previously provided drugs used in executions are no longer willing to supply state and federal departments of corrections if the products will be used for lethal injections.

In the past, lethal injections were carried out using a three-drug protocol. First, a general anesthetic such as sodium thiopental was used to sedate the inmate. Then a muscle paralytic was used to immobilize the inmate, followed by potassium chloride to stop the heart. Death would occur, on average, 10 to 12 minutes after the initial administration of the sodium thiopental.

Changes in Europe

Traditionally, prisons obtained these drugs from pharmaceutical companies in Europe. However, in December of 2010, the United Kingdom banned sodium thiopental exportation to the United States after the companies discovered that supplies of the drug exported to the United States were being used for capital punishment.

Further, in July 2011, pentobarbital, a drug often used as a muscle paralytic and a powerful anticonvulsant, was also subject to tight restrictions after its Danish patent-holding company, Lundbeck, refused to continue selling the drug to any U.S. prison that carried out executions.

Finally, the European Union instituted a ban on exportation to the United States of any drugs or medical products used for capital punishment. The ban is a part of the European Union Torture Regulation, which states that “the Union disapproves of capital punishment in all circumstances and works towards its universal abolition.”

Domestic drug sources

After this ban, states were left with quickly expiring drugs and no other source from which to obtain them. This led departments of corrections to examine alternatives to the previous three-drug protocol, including two-drug or single-drug options, as well as the use of compounding pharmacies to acquire the needed drugs.

Compounding pharmacies process and combine medical ingredients to produce drugs based on the specific needs of the patient. Compounding pharmacies may also use this process to recreate existing chemical compounds for general medical use, instead of for a specific patient.

The approximately 56,000 compounding pharmacies in the county are regulated and licensed by the state in which they operate, like other pharmacies. However, accreditation is not mandatory and inspection protocols are much less rigorous than other pharmacies. Pharmacies that only compound drugs based on singular, individual prescriptions are also not required to obtain Food and Drug Administration approval, and are exclusively under state pharmacy regulation. This has led to concerns that lack of oversight will lead to substandard drugs that could produce unknown results in patients, including death row inmates.

These alternatives to which the departments of corrections have turned and the concerns they have raised have led to right-of-access lawsuits by inmates seeking information regarding the identity of drug manufacturers.

“The states’ inability to get the drugs from Europe has been the biggest driver in lethal injection cases and has resulted in right-of-access claims,” Faridi said. “If there wasn’t a drug shortage . . . and [states] didn’t need to use compounding pharmacies for these drugs, we wouldn’t have these claims.”

Lockett, the inmate from Oklahoma, likely received a compounded version of Midazolam, the sedative used as the first drug in Oklahoma’s protocol. It is not clear whether a lack of testing on the drug or an insufficient dose was responsible for the difficulty at his execution.

In McGuire’s case in Ohio, the state used Midazolam from Hospira, a U.S. company that produced several drugs in Europe and stopped importing those drugs to the United States under the E.U. ban. Hospira has since denounced the use of its drugs in executions and reiterated that it only sells drugs to prisons for medical treatment, not for lethal injections.

In McGuire’s case, the issues during his execution appeared to be dosage problems, not problems related to compounding. In addition to withholding the sources of execution drugs, many states have declined to make public information regarding dosage levels they intend to use in executions.

Critics of secrecy laws, as well as attorneys arguing for pharmacy disclosure, cite the limited regulation of compounding pharmacies and dosage levels as evidence of the risk that incorrectly prepared drugs could cause pain and suffering during the execution.

Secrecy statutes

One of the main concerns of states seeking to protect drug suppliers’ identities is the possibility that death penalty opponents might pressure those pharmacies to stop producing and supplying the drugs used for execution. Their concern is heightened since foreign suppliers have stopped supplying to prisons and, in some cases, stopped producing drugs all together.

In denying requests for information regarding the identity of drug and medical suppliers involved in executions, many states rely on existing exceptions to their public information acts, such as protections for individuals’ physical safety, certain law enforcement and prosecutorial information, and information related to “biological agents or toxins.” However, some states are implementing new “secrecy statutes” that specifically shield the identities of members of the execution team, including the supplying pharmacies.

Significant debate exists regarding the protections that the compounding pharmacies enjoy under these statutes.

“The identity of the executioner has always been kept secret and there is good reason for that,” Faridi said. However, he added that there is no history for concealing the identity of the drug supplier. That has been a more recent development in response to the limited availability of the drugs and concerns that companies will stop selling to departments of corrections if there is public pressure to do so.

Five states in particular illustrate different ways state governments are seeking to block the dissemination of information regarding the identity of drug and medical suppliers used in executions.

Specific protections for suppliers

Oklahoma is home to arguably the most controversial secrecy statute. The statute protects against public information requests that would disclose the “identity of all persons who participate in or administer the execution process and persons who supply the drugs, medical supplies or medical equipment for the execution.”

Further, the statute bars public access to this information by exempting it from other provisions in state law guaranteeing public access to information. The secrecy statute explicitly states that, “the purchase of drugs, medical supplies or medical equipment necessary to carry out the execution shall not be subject to the provisions of The Oklahoma Central Purchasing Act.”

The Oklahoma Central Purchasing Act is the state’s law governing the expenditure of government funds. One provision of the act makes public all “records of the State Purchasing Director pertaining to any acquisition, contract, transfer, negotiations, order, or rejection.” This statute would require disclosure of all information related to the purchase of drugs used in executions, yet the secrecy statute explicitly exempts this information from required disclosure.

“This is all aimed at making sure no one can find out the identity of the pharmacy,” said Joey Senat, a media law professor at Oklahoma State University. “The Purchasing Act provision is just an extension of that goal.”

However, Senat said that the Purchasing Act provision was just a small part of the problem.

“It’s not just about the inmates. Whether you are against the death penalty or you are for it, this is being done on our behalf,” he said, emphasizing that the public has a vested interest in having access to the information Oklahoma’s secrecy statute protects.

Oklahoma has asserted that its secrecy statute also extends to pharmacies from which the drugs are obtained.

However, on March 26 of this year, in Lockett v. Evans, where Lockett and Warner sought disclosure of the drug supplier, a state judge ruled the secrecy statute unconstitutional.

In its opinion, the court held that nondisclosure of the information was a “violation of due process because access to the courts has been denied.”

Susanna Gattoni, attorney for both Lockett and Warner, was pleased with the ruling.

“I don’t understand why execution, which is the most severe type of punishment we have in the United States, needs to be secret,” she said. “To me, that’s something that should be transparent automatically.”

Despite that ruling and temporary stays of execution that followed, the Oklahoma Supreme Court ultimately found no constitutional violation, and Lockett’s execution proceeded without either inmate being informed of the process the state intended to use. Warner’s execution is now stayed for six months while the state investigates what went wrong in Lockett’s.

Missouri is also embroiled in controversy regarding its secrecy statute. The statute protects from disclosure the “identities of members of the execution team, as defined in the execution protocol of the department of corrections.”

In July 2012, the Missouri Department of Corrections amended its lethal injection protocol to define the execution team as “contracted medical personnel and department employees.”

On Oct. 22, 2013, MDOC announced that the department had “added a compounding pharmacy to its execution team” and that “[t]he compounding pharmacy will be responsible for providing pentobarbital for executions carried out under the new protocol.” The memo also served as notice that Missouri was moving to a one-drug execution protocol similar to that used in Oklahoma’s controversial January 2014 execution of Michael Lee Wilson, whose last words were “I feel my whole body burning.”

Due to the language of the state secrecy statute, the decision to include the pharmacy that provides the pentobarbital as part of the execution team would shield its identity from the public.

This state secrecy statute was challenged in federal court in Zink v. Lombardi. The district court only permitted the inmates’ claims to proceed on Eighth Amendment, not First Amendment or freedom of information, grounds. Nonetheless, the court still found that the Eighth Amendment required Missouri to release the information.

Missouri appealed the district court’s ruling to the U.S. Court of Appeals for the Eighth Circuit, whose review was also limited to the inmates’ Eighth Amendment argument. The Eighth Circuit ruled that the information the inmates sought was not relevant to their cruel and unusual punishment claim, and therefore the state did not have to release it. The court went on to vacate the lower court’s order of disclosure.

The inmates sought review of the Eighth Circuit’s decision from the U.S. Supreme Court. On April 7, the Court declined to review the case.

However, prior to the petition for writ, the inmates filed an amended complaint in district court to assert new claims. In the amended complaint, the inmates asserted a right to the information based on due process grounds, as well as First Amendment right-of-access grounds.

The litigation is currently ongoing. Six inmates have been executed in Missouri, all seemingly without incident, under the October 2013 protocols.

Georgia’s secrecy statute shields from disclosure any “identifying information of any person or entity who participates in or administers the execution of a death sentence.”

Notably, the statute also shields from public access “identifying information of any person or entity that manufactures, supplies, compounds, or prescribes the drugs, medical supplies, or medical equipment utilized in the execution of a death sentence.”

Amended in 2013, the language of the statute is particularly unique in its reference to compounding. Only one other state explicitly references compounding in its secrecy statute, and Missouri is the only state that has addressed the procedure in its lethal injection protocol.

In early July 2013, Georgia inmate Warren Lee Hill filed a request with the Georgia Department of Corrections for access to documents concerning the details of the drugs the state planned to use in his execution, including, among other details, the “manufacturer, individuals or entities in the chain of supply, prescriber, compounding pharmacy, or pharmacist responsible for making the drugs.”

After receiving heavily redacted documents that failed to disclose the manufacturer of the drug to be used in his execution, Hill filed a complaint with the court to identify the compounding pharmacy set to supply the drug.

The July 12 complaint argued that it would be “impossible for Mr. Hill to determine whether the drugs that will be used by the Department of Corrections to execute him are counterfeit, expired, or tainted in some way likely to cause him grave harm or suffering during his execution.”

Hill argued that Georgia’s secrecy statute violated his Fourteenth Amendment due process rights. He further reasoned that the denial of access heavily restricted his ability to make a proper Eighth Amendment claim against cruel and unusual punishment.

The state, however, argued that the secrecy statute must remain in place to protect the supply of lethal injection drugs and to protect companies and their employees from harassment.

Agreeing with Hill, a state superior court issued a preliminary injunction staying the execution, ruling that the state’s secrecy statute was unconstitutional, though not on First Amendment grounds.

The court went further, though, speaking to the First Amendment implications of the state’s statute. It discussed a First Amendment claim not only as it related to Hill’s specific right of access, but also as it related to the general public’s right of access.

“While it is the case that [company employees] should be free from harassment, the court must weigh the rights of those individuals against the rights of the condemned inmate as well as the public to know where and how these drugs are produced,” the court said. “It is clear to the court that such information is essential to the determination of the efficacy and potency of lethal injection drugs.”

The Georgia Supreme Court has now taken up the case and heard oral arguments on February 17.

Applying more general statutes to executions

The Louisiana secrecy statute protects the identities of people who participate “either directly or indirectly” in an execution. However, the statute does not explicitly shield the identities of pharmacies or pharmacists from public information requests.

After a change in the state’s lethal injection protocol, Louisiana inmate Christopher Sepulvado challenged the state’s reliance on its secrecy statutes in federal court arguing that by withholding the information, Louisiana was violating his due process rights.

A federal district court sided with Sepulvado and ruled that fundamental fairness required “the inmate be given meaningful and adequate notice of how his rights have been affected by the changes in the execution protocol.”

The district court ordered the state to release the information and granted Sepulvado a stay of execution.

Six months later, the U.S. Court of Appeals for the Fifth Circuit reversed the lower court’s ruling and vacated the stay of execution, finding “[t]here is no violation of the Due Process Clause from the uncertainty that Louisiana has imposed on Sepulvado by withholding the details of its execution protocol.”

Sepulvado petitioned the U.S. Supreme Court for review of the Fifth Circuit’s decision, but the Court declined to review the case on April 7.

In May 2014, the Louisiana legislature has moved a step closer to clarifying the state’s secrecy law and keeping more information from public view. If the bill, which is now before the full state House of Representatives, becomes law, it will exempt from public view “identifying information of any person or entity that manufactures, compounds, prescribes, dispenses, supplies, or administers the drugs or supplies utilized in an execution.”

By contrast, Texas does not have a specific secrecy statute protecting the identity of the execution team or pharmacies involved in the manufacturing or supplying of lethal injection drugs.

Instead, the state has historically declined requests for that information through other exemptions to public information laws. Generally, the state asserts that it is does not have to provide information where there is a risk of physical harm to those whose identities would be disclosed. By extension, Texas argues that there is a risk that pharmacies involved in creating execution drugs might come under public attack if their identities were known.

However, on three occasions between 2010 and 2012, the Texas attorney general has indicated that information identifying the manufacturer or supplier of lethal injection drugs is public information and the state should release it upon request.

These three attorney general opinions specifically rejected assertions that the state could withhold the information under exemptions for physical safety and “highly intimate and embarrassing information.” The decisions also rejected the state’s claim that because the communications were between government lawyers, disclosure should be blocked on attorney-client privilege grounds.

“As you have failed to demonstrate the information meets the . . . test for privacy, we find the drug quantities, expiration dates, last dates of purchase, and supplier names at issue are not confidential under common-law privacy and the department may not withhold this information,” the attorney general’s office found in a 2010 decision compelling disclosure and rejecting the argument that drug and supplier information did not qualify as highly embarrassing information.

However, when Texas inmates Tommy Lynn Sells and Ramiro Hernandez requested information similar to that sought in the three attorney general decisions, the Department of Criminal Justice again refused to release the information.

After a legal battle in both Texas state and federal courts, and despite Sells receiving a stay of execution only several hours earlier, the Fifth Circuit ruled that the information Sells and Hernandez sought was not public information. The court relied on its previous decision in the Louisiana Sepulvado case to reiterate its ruling that there is no due process violation in a state’s denying access to this information.

Sells petitioned the Supreme Court for review, but the Court declined to hear the last-minute appeal. Sells was executed the following day.

Following the Supreme Court’s denial of Sells’ petition for review, Hernandez declined to appeal his own case. The state executed him on April 9.

Requiring transparency

While many state and federal courts appear to reject challenges to states’ secrecy statutes, a federal court in Arizona recently struck down Arizona’s secrecy statute, and did so explicitly on First Amendment grounds.

This is the first time a court used the First Amendment to invalidate a secrecy statute.

In Schad v. Brewer, the state argued it was permitted to keep secret the source and nature of execution drugs based on the state’s secrecy statute and a “legitimate interest in protecting its drug sources from public attack.”

In the state’s opposition to the request for a temporary restraining order, it relied on a dissenting opinion from a federal appellate case, Landrigan v. Brewer, to support its reasoning. The dissent found that “certainly Arizona has a legitimate interest in avoiding a public attack on its private drug manufacturing sources.”

However, the court in Arizona disagreed with the state and ordered Arizona to make public information including the identity of the manufacturer of the drug, as well as information that could lead to identifying the drug supplier.

In coming to this conclusion, the court cited a “well-settled right of access to governmental proceedings [that] is premised on ‘the common understanding that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs.’”

Thus, the court reasoned that the state’s argument for concealment was superseded by a First Amendment right of citizens to access information about public affairs so that they are able to participate in informed debate.

“The public must have reliable information about the lethal-injection drugs themselves in order to judge the propriety of the particular means used to carry out an execution,” the judge wrote. “There is a First Amendment right of access to information about the means used to carry out an execution.”

While the Arizona inmates were successful on their right-of-access claims, they were nonetheless executed as scheduled. Because the executions were carried out, the state of Arizona did not appeal the district court’s First Amendment decision.

However, Jeff Zick, lead attorney for the state in the case, told The Arizona Republic that if the state’s secrecy statute is challenged again, the state will fight it to the U.S. Supreme Court.

While no executions have taken place in Arizona since the executions of the plaintiffs in Schad, Zick went on to say that the state is now in possession of midazolam and hydromorphone, the same two-drug cocktail used to execute McGuire in Ohio.

Next steps

On May 15, the Reporters Committee for Freedom of the Press, the ACLU of Missouri and six media organizations filed two lawsuits in Missouri making open records challenges to the state’s withholding of information about the labs and pharmacies that make and test lethal execution drugs.

The Reporters Committee, joined by the ACLU and a reporter from St. Louis Public Radio, argued that those companies do not qualify as “members of the execution team,” and therefore the state must release their names pursuant to the state Sunshine Law. The Associated Press, Guardian US, The Kansas City Star, The Springfield News-Leader and The St. Louis Post-Dispatch made similar claims, and also alleged that there is a First Amendment right of access to information about executions, and that the state’s law violates that right.

The states’ desire to protect the identities of pharmacies which provide lethal injection drugs and other related information is well documented in their secrecy statutes. However, in light of the mishandled executions of McGuire in Ohio, and Lockett in Oklahoma, the right-to-access supporters’ attempts to overcome the secrecy statutes are not going to go away any time soon, a fact indirectly acknowledged by Oklahoma Governor Mary Fallin.

“No execution should take place in Oklahoma until there has been a full investigation into Clayton Lockett’s death, including an independent autopsy and full transparency surrounding the drugs and the process of administering them,” Fallin said in a statement.