| JURISPRUDENCE THE LAW, LAWYERS, AND THE COURT.
FEB. 3 2015 5:28 PM
The Capital Punishment Cover-Up
Virginia wants to hide “all information relating to the execution process.”
By Dahlia Lithwick
The gurney used for administering lethal injection at the Greensville Correctional Center
near Jarratt, Virginia.
Photo by the Virginia Department of Corrections via Getty Images
raised serious new questions about how death penalty drugs are
administered. They have drawn fresh scrutiny from the Supreme Court
itself, which agreed last month to assess whether a lethal injection cocktail used in
Oklahoma violates the Eighth Amendment ban on cruel and unusual punishment. A
month ago Ohio announced that officials would stop using one of the drugs in
the current protocol, midazolam, after a botched execution involving untested
A series of botched executions in Ohio, Oklahoma, and Arizona last year
drugs last year. And on Friday, Ohio Gov. John Kasich announced that the state
would postpone all seven scheduled 2015 executions, partly because of questions
surrounding the controversial drug cocktail Ohio had been using.
DAHLIA LITHWICK
Dahlia Lithwick writes about the courts and the law for Slate.
Yet just prior to announcing this temporary moratorium, Ohio lawmakers
attempted to improve the reputation of its capital punishment system with bizarre
new laws passed in a lame-duck session. The controversial rules increased secrecy
by shielding the identities of drugmakers and suppliers for lethal injections, and they
immunized error by providing anonymity for anyone who participates in the
process as well as the state execution team. The effect, as the Washington Post
editorialized, was “to impose a gag order on potentially adverse reports that could
inform the public debate over capital punishment.”
But while Ohio officials eventually came to realize that the problems with their
lethal injection protocol couldn’t be wholly fixed by shrouding executions in ever
more secrecy, Virginia lawmakers have arrived at the opposite conclusion. Last
week they proposed legislation that would make it easier to obtain lethal injection
drugs and that would also create an almost impermeable layer of secrecy around
the execution process. The new law would make it significantly harder for the press
and the public to know what was happening in the execution chamber. This is, of
course, the same Virginia Legislature that flirted last year with reinstating the
electric chair if lethal injection drug supplies dried up. (That effort failed.) The
effect of this new proposed legislation would be less scrutiny of a process that the
rest of the nation, including the highest court in the land, views with ever more
skepticism.
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Amid the recent rash of high-profile screw-ups in executions, new cover-up
measures have been passed in more than a dozen states, allowing departments of
corrections to increasingly refuse to disclose where their execution drugs come
from, how and if they were tested, and whether corrections officers are qualified to
administer them correctly. In response to these clampdowns on information about
how tax dollars are being spent and how prisoners are being executed in their
citizens’ name, lawsuits have been filed by capital defense attorneys, civil liberties
groups, and news organizations in Oklahoma, Ohio, Missouri, Georgia, Tennessee,
Pennsylvania, and Arizona.
This increased scrutiny into the machinery of death bears out reasons for public
concern. As the Daily Beast recently noted, court pleadings in an Oklahoma suit
reveal that Mike Oakley, the former general counsel for that state’s Department of
Corrections, has said that his research on the drug midazolam included “WikiLeaks
or whatever it is.” Justice Sonia Sotomayor, dissenting from the court's decision to
allow Oklahoma to execute yet another capital defendant, noted in January that the
state’s expert witness defended the use of midazolam but “cited no studies” and
“instead appeared to rely primarily on the web site www.drugs.com.”
Still, in the jubilant spirit of “if you can’t fix it, hide it,” Virginia is considering the
proposed legislation, sponsored by Senate Minority Leader Richard L. Saslaw, D-
Fairfax, and called Senate Bill 1393. At one level, by loosening the rules on
pharmacies that compound drugs, it will make it easier for the commonwealth to
obtain the lethal-injection drugs that have been ever-more difficult to procure
after U.S. suppliers stopped making them and European companies refused to
allow them to be used in executions. But the bill goes far beyond that, by
protecting from public view “all information relating to the execution process” and
elsewhere ensuring that “information relating to the identity of ... compounding
drugs for use in executions and all documents related to the execution process are
confidential, exempt from the Freedom of Information Act, and not subject to
discovery or introduction as evidence in a civil proceeding except for good cause
shown.”
What makes the bill extraordinary isn’t just the exceptionally broad language that
hides from public scrutiny “all information relating to the execution process” but
also the notion that it cannot be used in any civil litigation. Amazingly, the
Democratic administration of Gov. Terry McAuliffe supports the new secrecy
measure, citing “security” concerns. While members of the subcommittee that
debated the legislation last week claimed they would amend it to require that the
state disclose what drug or drug combination were being used to kill people, the
broad secrecy language hiding “all information” is pretty clear on its face. At the
hearing last week, Saslaw argued that the object of the proposed bill was to protect
the safety of those who administer capital punishment, saying: “There ain’t a state
in America that gives you the name of the guy who sticks the needle in any more
than you got the names of the folks who pulled the switch when we had the electric
chair.”
Corinna Barrett Lain, a professor at the University of Richmond School of Law,
argued against the secrecy language at last week’s hearing. She says the proposed
measure is “the most broad secrecy statute in the country because it says ‘all
information about the execution process, which by its plain text would include even
a botched execution itself.” In an email she notes that Saslaw’s analysis about the
guy who pulls the switch on the electric chair should not extend to the drugs used in
an execution: “The identity of the executioner is not a constitutional matter. The
contents of the syringe are," she writes.
In her testimony Lain pointed out how absurd it is to hide government actions and
accountability precisely when the state must be held to account: “It strikes me as
the essence of bad government to enshroud the government in secrecy in its most
powerful moment—when it exercises its sovereign right to take the life of one of its
citizens.” She added that this bill ensures that “there are no questions asked about
where the drugs came from, what the drugs are, what their potency is, whether
they have been contaminated, whether they are expired, indeed whether they were
obtained legally.”
| have long been curious about the argument that marauding death penalty
opponents race around America, roughing up the pharmacists and corrections
officials who participate in their state capital punishment apparatus, thus
warranting increased secrecy. So | checked with Frank Knaack, the director of
public policy and communications with the ACLU of Virginia. He says he knows of
no such incidents, noting that the commonwealth’s Department of Corrections has
made all of its information available on the drugs used and the procedures followed
for 10 years and “there is no evidence of a problem, or reason to believe that Virginia
taxpayers can’t be trusted with this information.”
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Knaack also points out that Virginia, where there are eight people on death row and
where there is still a supply of lethal injection drugs, assumes another problem that
simply doesn’t exist: that there will be a massive shortage of lethal injection drugs
and a huge increase in capital defendants. The fact that the commonwealth
executes relatively few people, combined with the lack of evidence that we must
hide the identity of everyone involved in an execution, certainly suggests that the
new law isn’t so much protecting the machinery of capital punishment as it is
drawing a curtain around the death chamber for the sake of secrecy itself. That all
information surrounding an execution is exempted not just from FOIA scrutiny, but
also largely from use in civil suits, sounds like it has more to do with a panicky cover-
up than with prison security.
Top Comment
"If the voters knew what we were doing, they'd stop it" should be a red flag about the policy
itself, not grounds to hide the policy from the public. More...
-Ozymandias42
218 Comments Join In
There could be an unintended benefit to the legislation for opponents of capital
punishment. Lain, a former prosecutor, notes that the paradox of the current
solution to a nonexistent problem guarantees that those eight death penalty cases
will be tied up for years, as lawyers battle it out with the state over matters of
transparency: “This bill ensures that executions will be hung up in litigation for as
long as lawyers can drag it out. And while the U.S. Supreme Court doesn’t seem to
care much about the death penalty, it does care about process, and it’s the cover-up
that’s going to get these states into trouble.”
Say what you want about the death penalty, but few Americans—and presumably
even fewer jurists—affirmatively want to see it administered sloppily, violently, by
way of untested combinations of drugs procured from ambiguous sources. As
nationwide support for the death penalty continues to drop, those who believe in
capital punishment will need to come up with better arguments than “nothing to
see here, folks.” Any good mobster can tell you that it’s not the crime that will get
you in the end; it’s the cover-up. And the states that are trying mightily to cover up
what happens in their death chambers are mostly just doing a good job of signaling
that whatever they are doing in there bears closer watching.
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