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April 15, 2014

"Secret Drugs, Agonizing Deaths"

The title of this post is the headline of this New York Times op-ed published yesterday.  Authored by Megan McCracken and Jennifer Moreno, here is how it starts:

Facing a critical shortage of lethal injection drugs, prison officials in a number of states have recently engaged in an unseemly scramble to obtain new execution drugs, often from unreliable and even illegal sources.  Not only does this trend raise serious questions about the constitutionality of executions, it also undermines the foundations of our democratic process.  In the name of security, states are now withholding vital information about their death penalty procedures — from death row prisoners’ lawyers and from judges, whose stamp of approval they need to impose the ultimate sanction, as well as from the public, in whose name the sentence is carried out.

States have long shielded the identities of executioners, a reasonable policy that should not interfere with judicial review of execution procedures.  But in the past year, Georgia, Missouri, Tennessee and other states have expanded the reach of their secrecy laws to include not just the execution drugs used, but even the pharmacies that supply them.

These laws hide the information necessary to determine if the drugs will work as intended and cause death in a humane manner.  For states to conceal how they obtain the execution drugs, whether those purchases comply with the law and whether the drugs themselves are legitimate prevents courts from analyzing the legality and constitutionality of death penalty procedures.  And that deprives the public of informed debate.

April 15, 2014 at 09:13 AM | Permalink


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We need some whistle-blowers, particularly in these states like Tennessee that shield not only information about the drugs they use for executions but for the names of the pharmacies that supply these prison systems. A good public shaming would do for the pharmacies involved.

I can understand why they would want to shield the person who carries out the execution, but shielding this other information is inexcusable. I shows that our institutions have something to hide.

Posted by: william r. delzell | Apr 15, 2014 9:26:36 AM


I'm not so sure it's hiding something. I highly doubt that these drugs are being purchased in back alleys or third-world countries...and even if they were, I believe those drugs can be tested in a state lab to make sure that they're of sufficient purity. More likely, the pharmacies agree to supply the drugs in exchange for anonymity to avoid being harassed by overzealous DP opponents calling for a boycott of that pharmacy. See, e.g., Mozilla.

Posted by: Res ipsa | Apr 15, 2014 9:44:16 AM

Hogwash, Mr. Delzell. It is nothing more than an attempt to bully, intimidate, and whine your way to get what you want because democracy is not working for you.

The name of the pharmacy is completely irrelevant to the issue. An independent lab to certify that the drugs are legit is all you need.

Posted by: TarlsQtr | Apr 15, 2014 9:47:09 AM

The ultimate issue would be proper testing, but if that is all that is needed, it's so obviously and moronic even to say more, why make it public before?

Redundant safeguards often are used. Also, the Oklahoma judge noted he himself wasn't given info. Are concerns about "intimidation" enough so we don't trust judges with info that from what I can gather was before generally available?


Names of pharmacies are not the only concern. It is that new and novel means argued to be not authorized and/or regulated by the feds are being used. Merely testing the drugs again is not the only safeguards in the system. We don't just trust a state to test things and sell them. This was passed by "democracy."


If something like this was done in another context, some of those so scornful very well might be concerned about the changing of the rules that have concerned several judges and multiple justices. Just like "democracy" isn't the biggest concern in other contexts.

Posted by: Joe | Apr 15, 2014 10:48:28 AM

Such a silly argument. I wonder if states returned to hanging (as some have suggested), would inmates have a right to know the manufacturer of the rope and its manufacturing process? If firing squad, would the caliber of bullets and brand of rifles be an issue? We wouldn't want defects in the rope or the bullets/firearms making the execution cruel and unusual, now would we?


Posted by: J.D. | Apr 15, 2014 10:55:24 AM

|| “Not only does this trend raise serious questions about the constitutionality of executions, it also undermines the foundations of our democratic process” ||
"Megan McCracken and Jennifer Moreno are staff lawyers
in the Death Penalty Clinic at the University of California, Berkeley, School of Law.

--- Yes, that’s what it does.
If I may presume, there’s likely a question in the alleged minds of McCracken and Moreno whether execution is constitutional in America,
because the Constitution is a “living” document meant to be bent and twisted to fit ever-evolving social norms.

Our democratic process is intended to benefit the convicted complainant regardless of the certainty of the conviction or the depravity of the crime.

Perspective, little, considering the luxurious due process afforded capital defendants;
Morality, selective, by which they ignore every interest of the victims and the public to swift justice (vincit omnia criminalis).

Posted by: Adamakis | Apr 15, 2014 11:21:01 AM

Daniel Ellsberg and Ralph Nader, where are you when we need you?

Posted by: william r. delzell | Apr 15, 2014 1:27:22 PM

staying away from this mess.

Posted by: rodsmith | Apr 15, 2014 3:47:34 PM

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