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November 20, 2018

"Behind the Curtain: Secrecy and the Death Penalty in the United States"

The title of this post is the title of this notable new report released today by The Death Penalty Information Center.  Here is part of its executive summary:  

During the past seven years, states have begun conducting executions with drugs and drug combinations that have never been tried before.  They have done so behind an expanding veil of secrecy laws that shield the execution process from public scrutiny.

As pharmaceutical companies have taken action to prevent states from using their medicines to execute prisoners, states have responded by procuring whatever drugs seem available and obtaining them secretly through questionable means.

Since January 2011, legislatures in thirteen states have enacted new secrecy statutes that conceal vital information about the execution process.  Of the seventeen states that have carried out 246 lethal-injection executions between January 1, 2011 and August 31, 2018, all withheld at least some information about the about the execution process.  All but one withheld information about the source of their execution drugs. Fourteen states prevented witnesses from seeing at least some part of the execution.  Fifteen prevented witnesses from hearing what was happening inside the execution chamber. None of the seventeen allowed witnesses to know when each of the drugs was administered.

This retreat into secrecy has occurred at the same time that states have conducted some of the most problematic executions in American history.  Lethal injection was supposed to be a more humane method of execution than hanging, the firing squad, or the electric chair, but there have been frequent reports of prisoners who were still awake and apparently experiencing suffocation and excruciating pain after they were supposed to be insensate.  These problems have intensified with the use of new drug formulas, often including midazolam.  In 2017, more than 60% of the executions carried out with midazolam produced eyewitness reports of an execution gone amiss, with problems ranging from labored breathing to gasping, heaving, writhing, and clenched fists. In several of these cases, state officials denied that the execution was problematic, asserting that all had proceeded according to protocol. But without access to information about drugs and the execution process, there is no way the public can judge for itself....

This report documents the laws and policies that states have adopted to make information about executions inaccessible to the public, to pharmaceutical companies, and to condemned prisoners.  It describes the dubious methods states have used to obtain drugs, the inadequate qualifications of members of the execution team, and the significant restrictions on witnesses’ ability to observe how executions are carried out.  It summarizes the various drug combinations that have been used, with particular focus on the problems with the drug midazolam, and provides a state-by-state record of problems in recent executions. It explains how government policies that lack transparency and accountability permit states to violate the law and disregard fundamental principles of a democratic government while carrying out the harshest punishment the law allows.

November 20, 2018 at 02:24 PM | Permalink


Doug, I believe it was Morris Dees who said that capital punishment is more about the political system than the criminal justice system, and the observation about the secrecy of the actual execution illustrates how conflicted most Americans are about the practice. So many people want to talk about it, or use it as a way to get votes in an election, but don't want to confront the reality of the government killing people.

Two examples of the politics of capital punishment. In the mid-80's I was representing the first African American to be put to death in North Carolina since Furman. Two weeks prior to the execution, I received an Order of postponement of the execution that I was not aware of. Some public relations government official had figured out the government had planned to kill my client on Martin Luther King's birthday.

North Carolina has now, regrettably, gone to partisan elections for all judges, from traffic court to the NC Supreme Court. I suspect it won't be long before part of a resume for a judicial candidate is their position on capital punishment. I once made a motion to recuse a N C Supreme Court justice from considering a death penalty appeal because he had said in an interview that "I believe the death penalty saves innocent lives." I certainly didn't think my client's case would be decided by an impartial judge.


Posted by: bruce cunningham | Nov 21, 2018 8:39:28 AM

"Lethal injection was supposed to be a more humane method of execution than hanging, the firing squad, or the electric chair"

That's because they expected Doctors to prefer this more humane method and to cooperate with them. Instead it's carried out by people who have no idea what they're doing because doctors don't want to have anything to do with it.

If doctors don't want to be part of executions (and why should they!), then we should go back to firing squads and electric chairs that don't require specialists to administer.

Posted by: execution or abortion | Nov 22, 2018 7:53:00 AM

“Seemingly oblivious to prior concerns, American lawmakers emphasized that lethal injection appeared more humane and visually palatable relative to other methods. It was also cheaper.”
“The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty”
Fordham University School of Law Oct 2007

Posted by: Claudio Giusti | Nov 22, 2018 2:23:07 PM

Even in actual medical contexts doctors have very little to do with most IV starts. That's left to a nurse or someone even less qualified (such as a phlebotomist), And very often there is no immediate supervision by a more qualified individual.

Posted by: Soronel Haetir | Nov 22, 2018 2:27:00 PM

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