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August 4, 2014

Will any Justices express any concerns about drug secrecy after third ugly execution?

ImagesThe question in the title of this post is prompted by this new AP article headlined "Justices silent over execution drug secrecy." Here are excerpts:

No one on the Supreme Court objected publicly when the justices voted to let Arizona proceed with the execution of Joseph Wood, who unsuccessfully sought information about the drugs that would be used to kill him.

Inmates in Florida and Missouri went to their deaths by lethal injection in the preceding weeks after the high court refused to block their executions. Again, no justice said the executions should be stopped.

Even as the number of executions annually has dropped by more than half over the past 15 years and the court has barred states from killing juveniles and the mentally disabled, no justice has emerged as a principled opponent of the death penalty.

This court differs from some of its predecessors. Justices William Brennan and Thurgood Marshall dissented every time their colleagues ruled against death row inmates, and Justices Harry Blackmun and John Paul Stevens, near the end of their long careers, came to view capital punishment as unconstitutional. "They're all voting to kill them, every so often. They do it in a very workmanlike, technocratic fashion," Stephen Bright, a veteran death penalty lawyer in Georgia, said of the current court.

Wood's execution on July 23 was the 26th in the United States this year and the third in which prisoners took much longer than usual to die. Wood, convicted of killing his estranged girlfriend and her father, was pronounced dead nearly two hours after his execution began, and an Associated Press reporter was among witnesses who said Wood appeared to gasp repeatedly, hundreds of times in all, before he died.

Justice Ruth Bader Ginsburg said she and her colleagues are aware of what happened in Arizona, though she declined to say how the court would rule on a plea to stop the next scheduled execution -- of Michael Worthington on Wednesday in Missouri. "Your crystal ball is as good as mine," she said last week in an interview with The Associated Press.

The court's rejection of Wood's claim that he was entitled to learn more about Arizona's procedures and the source of the execution drugs came at the end of protracted legal wrangling. A federal judge in Arizona initially denied Wood's claim. The federal appeals court in San Francisco then granted a reprieve. But the justices reversed that ruling in a brief order. The court said the judge who initially ruled against Wood "did not abuse his discretion."...

The substance of capital punishment issues usually finds its way in front of the justices when there is no time pressure. In January, the court heard arguments in a case over a Florida law that used a rigid threshold in intelligence test scores in cases of borderline mental disability. In late May, a five-justice majority led by Anthony Kennedy struck down the law because it "contravenes our nation's commitment to dignity."

The soaring language that Kennedy often favors in his opinions has led some death penalty experts to believe that he eventually will provide the fifth vote, along with those of the court's four liberal justices, to end or severely restrict the use of the death penalty. "It is impossible to reconcile that language with the secrecy surrounding lethal injections," said Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund. "My assumption is quite a lot is happening behind the scenes."

Ginsburg cautioned not to read too much into the absence of public dissent when the court rejects 11th-hour appeals to stop executions. "When a stay is denied, it doesn't mean we are in fact unanimous," she said.

Still, Ifill said the court's unwillingness so far to deal with states' reluctance to reveal much about the provenance of lethal injection drugs is troubling. "I'm disappointed after all the revelations that at least some justices weren't prepared to say something pretty strong," she said.

The old saying, "Third time's a charm," has me inclined to predict that we may end up hearing from at least one Justice or two concerning execution drug secrecy the next time this issue is effectively raised before the Supreme Court. Whether that occurs this week on later this year, I suspect this issue will have some legs if states continue to have to experiment with new execution drug protocols and continue to preclude capital defendants from knowing all the experimental details.

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August 4, 2014 at 10:31 AM | Permalink


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Looks as if Scott Willingham will be shown to have been innocent after all. Even worse that the Michael Morton case. Here a prosecutor is manufacturing false evidence and inducing an informant to give false testimony. Kudos to the Innocence Project for pressing ahead with this case and exposing the corrupt prosecutor.

Posted by: observer | Aug 4, 2014 1:54:42 PM

I think the problem remains that there's no clear constitutional hook allowing the obtaining of information. The closest is an 8th Amendment prophylactic protection, but almost all the others were trial rights where the Court seemed to be saying that the lack of process alone was cruel and unusual.

The First Amendment claim is a huge stretch. There was a recent case that said no constitutional right to FOIA material. I think it's good policy. I could see a state court requiring it as a matter of judicial supervision. But I still can't see a Writ of Habeas Corpus mandating it.

Posted by: Erik M | Aug 4, 2014 3:23:18 PM

I think this article, cited by this blog, makes a good case for a "clear constitutional" (and statutory apparently) hook for obtaining information:


As to the justices making their opinions clear, as I noted some months back, three justices supported a lower court judge's concerns for obtaining information enough to dissent from a denial of stay and support a consideration of a cert grant.


Perhaps, the moment is coming when a justice will write some sort of statement on the matter.

Posted by: Joe | Aug 4, 2014 10:28:35 PM

It was 5-4 to deny an application for stay related to one of Mr. Worthington's petitions for cert.


Posted by: John | Aug 5, 2014 9:47:32 PM

Michael Worthington is next tonight. MO and TX use one drug massive protocol...they do it correctly...If anti-DP nuts didnt get europe to stop supplying drugs every state would use pentobarbital. Either get Texas to supply your state OR send your inmates to them for execution. If other states can house prisoners then why cant they perform executions for them? Problem=Solution

Posted by: DeanO | Aug 5, 2014 10:23:50 PM

"anti-DP nuts" = opposition to your nation to aid and abet what the country already deems an unjust punishment.

Posted by: Joe | Aug 6, 2014 1:43:52 PM

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