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March 28, 2014

Could Oklahoma ruling declaring drug secrecy unconstitutional impact execution plans nationwide?

The question in the title of this post is prompted by this new Reuters article, headlined "U.S. executions set for possible delay after Oklahoma court decision."  Here are excerpts:

An Oklahoma judge ruled on Wednesday the state's secrecy on its lethal injections protocols was unconstitutional, a decision that could delay executions in other states where death row inmates are planning to launch similar challenges.

County district court judge Patricia Parrish ruled the state violated due process protections in the U.S. Constitution by not providing the name of the drug supplier, the combination of chemicals and the dosages used in executions. Oklahoma's attorney general said the office will appeal.

Oklahoma and other U.S. states have been struggling to obtain drugs for executions. Many pharmaceutical firms, mostly in Europe, have imposed sales bans because they object to having medications made for other purposes used in lethal injections. The states have looked to alter the chemicals used for lethal injection and keep the suppliers' identities secret. They have also turned to lightly regulated compounding pharmacies that can mix chemicals.

But lawyers for death row inmates argue drugs from compounding pharmacies can lack purity and potency and cause undue suffering, in violation of the U.S. Constitution. "Judge Parrish's decision is a major outcome that should have a reverberating impact on other states that are facing similar kinds of transparency issues," said Fordham Law Professor Deborah Denno, who specializes in the legalities of lethal injections....

Legal experts expect more states to face challenges that will delay executions, but if they settle transparency issues, many will resume putting inmates to death. "Almost every state is hiding part of the process, or is attempting to," said Richard Dieter, the executive director of the Death Penalty Information Center....

For now, several of the 32 states with the death penalty are keeping mum about business transactions for execution drugs. Texas, which has executed more prisoners than any other state since the U.S. Supreme Court reinstated the death penalty in 1976, has obtained a fresh batch of the drug it uses for its executions. But Texas will not identify the supplier, citing "previous, specific threats of serious physical harm made against businesses and their employees that have provided drugs used in the lethal injection process," the Texas Department of Criminal Justice said in a statement.

Alabama said this week it has run out of one of the main drugs it uses, putting on hold executions for 16 inmates who have exhausted appeals and face capital punishment. It is also looking at ways to keep the name of drug providers secret. Inmates in Missouri, which carried out an execution this week, have sued the state over execution protocols that include layers of secrecy.

Arizona said on Wednesday it had to change its lethal injection cocktail because it could not obtain the drugs it once used. "Being lost in the conversation and political maneuvering is the fact that family of murdered loved ones are paying the ultimate price as they wait for justice to be carried out," Arizona Attorney General Tom Horne said in a statement.

Some related prior posts:

March 28, 2014 at 11:00 AM | Permalink


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One thing I've noticed about articles slanted against the DP, as this one is, is that they tend to talk about what they think (hope, actually) is going to happen, rather than what is actually happening.

The fairly open suggestion of this article, which Doug picks up on in his title, is that executions are going to slow down as these motions to disclose pharmacies speed up.

Is that what's actually happening?

No, it isn't, not that you'd ever find out from the article.

Here's what's actually happening. Motions of this sort are indeed being filed more frequently. As this has gone on, particularly in the first quarter of this year, we've had -- what? -- a slowdown in executions?

Nope. Executions are happening at a faster rate (14 so far), a rate that will mean 56 by year's end, more than the country has had in eight years.

Not that I expect actual facts to derail abolitionist wishful thinking. It's just that I would hope wishful thinking would stop getting reported as news.

P.S. Last I heard, Oklahoma county judges do not get the last word. Exactly this challenge was raised to the SCOTUS before the recent Ferguson execution, and got rejected.

Posted by: Bill Otis | Mar 28, 2014 11:30:02 AM

Bill Otis, you write: "Nope. Executions are happening at a faster rate (14 so far), a rate that will mean 56 by year's end, more than the country has had in eight years." This is so exciting; I could jump for joy, Please execute the miscreants--faster, faster...I am getting so excited that ....

Posted by: Madame DeFarge | Mar 28, 2014 12:43:18 PM

Bill Otis writes: "Executions are happening at a faster rate (14 so far), a rate that will mean 56 by year's end, more than the country has had in eight years." I find this so every exciting. I'm knitting at a frantic pace. Please keep the pace of executions going, faster, faster....I'm getting so excited that.....

Posted by: Madame DeFarge | Mar 28, 2014 12:47:33 PM

I would also point out that a county court ruling doesn't really amount to much until after the appeals process runs. I fully expect the state to appeal this ruling, but I do not have any insight into OK law as to what the result of such an appeal will be. This would also be a matter entirely within the province of the OK political branches to sfix as the ruling is based on state FOIA legislation, and so this information could be exempted.

Posted by: Soronel Haetir | Mar 28, 2014 1:05:18 PM

Yes, "one" judge only goes so far. But, three or four justices appear to think this a serious enough effort to address, as to various lower court judges. So, the matter will probably continue to "impact" the execution process.

Posted by: Joe | Mar 28, 2014 2:05:31 PM

Joe --

"But, three or four justices appear to think this a serious enough effort to address, as to various lower court judges."

Four Justices thought Miranda was wrongly decided. How did that work out?

Four Justices thought the Obamacare case was wrongly decided. How did that work out?


Posted by: Bill Otis | Mar 28, 2014 3:36:19 PM

"How did that work out?"

The USSC took a slew of cases, including Dickenson, that had serious "impact" (including getting USSC hearing) on the matter. This includes a range of exemptions etc. that to some degree watered down the rule.

As to the PPACA law, there were various votes in that case. It "worked out" that something many thought was patently constitutional (be it bad policy or not) continues to be open to litigation & in that very case, led to an important part of the law (Medicaid expansion) made voluntary. The latter part in the mind of some in part because two of the liberal wing thought it strategically smart to give in there. This made that part of the opinion -- with unclear effect on "state coercion" jurisprudence -- seem uncontroversial itself (it being 7-2). This too has serious "impact."

I find it almost silly to say this, to quote someone else "water is wet" reality, but you asked.

... anyway, just saw in the news another ruling by a district judge out of Texas on the same point.

Posted by: Joe | Mar 28, 2014 3:55:53 PM

Lawyers argue, compounded excution drugs could be impure, could caus suffering.

Should the appellate court make a ruling based on the facts as they are or based on speculation? Has any prisoner suffered pain during an execution? Because there have been no damage or suffering, these claims lack standing, let alone justiciability.

Posted by: Supremacy Claus | Mar 28, 2014 6:13:40 PM

I advocate the killing of humans in the name of the state to be done by firing squads in which the Governor is the lead shooter. This killing by other means is unmanly and unusual. I suppose if we went to firing squads there would be litigation over the nature of the bullets used.

Posted by: Liberty1stl | Mar 29, 2014 12:19:45 PM

Lib: Never a word about the butchering of murder victims. I am guessing you are a government dependent worker.

Posted by: Supremacy Claus | Mar 29, 2014 2:09:25 PM

When a killer butchers a victim then I suppose that eye for an eye could justify the state in killing the perp by butchering him/her. The Governor could be given a huge axe and cut the defendant up on some sort of large butcher block. Seldom does a perp strap some victim down on a gurney and inject them with poison. I am not against eye for an eye. I am against killing someone and calling it by some faux name like "executing" them. I am against unmanly killings like this poison method. A chopping up of a defendant on a butcher block might be cruel and it might be unusual. Firing squad with the Governor being the lead shooter seems the best way to go. Electricity, gas and poisons seem to me to be beyond the Pale. If you are gonna be a bear, be a grizzly. So chopping block seems better than electric chair, gas chamber or poisoning on the gurney. Shooting by firing squad seems more manly and civilized.

Posted by: Liberty1stl | Mar 29, 2014 3:09:20 PM

Why are you so emotional about cold hearted murderers? The death penalty is not a punishment, it is an ejection. Someone has gone too far, and is no welcome on earth anymore.

The lawyer lies about why. They always say, we are protecting the constitution and our American way of life. That is a ridiculous lie that insults the intelligence. They are protecting they lousy $80,000 a year, government make work jobs, at the cost of the lives of future victims of these heartless killers.

I want to understand why any one sane, not a lying lawyer, would take the abolition stand.

Posted by: Supremacy Claus | Mar 29, 2014 6:08:53 PM

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