Free Speech

Federal Judge Denies Death Row Inmates Access to Information on the Drugs That Will Kill Them

The inmates argued they had a First Amendment right to information that would ensure their Eighth Amendment rights were protected.


1st Amendment + 8th Amendment = Catch 22

When the state of Ohio executed convicted murderer Dennis McGuire last year, it took nearly 26 minutes for him to die, during which time he is said to have "gasped, choked, clenched his fists and appeared to struggle against his restraints." McGuire's execution was just one in a series of recent "botched" executions, which have led to increased scrutiny on death penalty states regarding the quality and provenance of the drugs they use to execute prisoners. 

These states have reacted by dramatically increasing the secrecy surrounding said drugs. Ohio recently passed House Bill 663 at the request of the prison industry, which claims it cannot continue to execute prisoners without denying the public access to information regarding the chemicals in lethal injection cocktails.

The Columbus Dispatch explains: 

The new law will allow prison officials to buy drugs from some of the 61 compounding pharmacies in the state. Typically smaller, independent businesses, compounders mix drugs for specific customer needs. They can ask the state not to identify them as the provider of lethal drugs for 20 years. The law also will keep confidential forever the identities of execution-team members and physicians involved in the process, even in an advisory capacity.

Ohio prison officials have said confidentiality is needed or else the compounding pharmacies won't sell drugs to the state for fear of backlash, threats and picketing by anti-capital-punishment groups. Major pharmaceutical companies, many of them based in Europe, no longer sell drugs for executions.

Four Ohio Death Row inmates challenged this law, claiming a First Amendment right to information that should be made public, in order to protect their Eighth Amendment rights shielding them from cruel and unusual punishment. 

Their suit was dismissed by U.S. District Court Judge Gregory L. Frost on the grounds that the law "does not suppress speech or the ability to oppose the death penalty…the statutory scheme simply cuts off Ohio and its employees as a source of specific information for both proponents and opponents of the death penalty."

Still, Frost was strikingly critical of the process which led to the lawsuit itself:

In execution protocol challenges, the law tells death-sentenced inmates to bring evidence into the courtroom while concurrently upholding a scheme that places the bulk of select evidence outside the reach of the inmates. The necessary is also the withheld: you must give us that which you cannot have to give. In order to challenge the use of a drug that will be used to execute them, inmates must explain why use of that drug presents a risk of substantial harm. But the inmates are not allowed to know from where the drug came, how specifically it was manufactured, or who was involved in the creation of the drug. This means the inmates can attempt to complain about the reliability of the drug without being afforded the information that would place the drug into a context in which the inmates and by extension the courts can evaluate the reliability based on more than impermissible speculation or perhaps unwarranted assumptions.

Frost added, "A proponent of Kafkaesque absurdity might be proud of such a byzantine method for pursuing the protection of a constitutional right," which makes his ruling that much more confounding. 

Andrew Cohen of the Brennan Center for Justice put it thus:

This is not reasoned justice. This instead is complete judicial capitulation to the corrections and compounding industries, and to the politicians beholden to them, and to a cult of secrecy that has taken hold in virtually every outlier state that still seeks to impose capital punishment. It is a judge explicitly acknowledging that "a right bereft of an effective, meaningful means to protect that right is arguably nothing more than an illusion" and then issuing a decision that reinforces the injustice of that illusion to a group of condemned men seeking no more than basic information about the manner in which the government seeks to kill them. 

This is not the end of First Amendment challenges to death penalty secrecy. The Guardian, The Associated Press and several Missouri newspapers have filed suit against the Show-Me State on the grounds that as journalists, they have a public interest in investigating and reporting on the drugs used to wield the ultimate in state power: the taking of a citizen's life.

A forthcoming Reason TV documentary will explore these efforts to increase death penalty transparency. 

NEXT: The Elusive Politics of American Sniper

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  1. Firing squad. Heroin overdose.

    Why must the government be so bad at everything it does?

    1. Well to be fair there’s really no good way of murdering someone.

      1. Countless cops disagree.

        1. There’s your method of execution. Just place them, unarmed, near a cop. Inevitably they’ll “grab for their belt”, and of the 50 or so shots the cop panic fires, a few are sure to hit their mark.

    2. Nitrogen asphyxiation, carbon monoxide poisoning.

      Christ, people off themselves painlessly every day and the governmment can’t figure out how to do it right?

      1. Using one of those methods would get rid of the problem of having to hide the sources of the drugs too. Those things are pretty easy to come by.

        The attachment to lethal injection as an execution method just seems weird. If you really need to do it cleanly, use some simple gas like that. I favor just shooting them in the head if it must be done. Though I’d rather not have anyone killing in cold blood in my name.

        1. can we just not order them to hold their breath?

          1. Is there a word order problem with that sentence?

            1. no. it don’t think so. can we not just, can we just not. tomato, fuck you toe.

    3. Firing squad? God forbid we actually make killing people messy.

      Heroin OD? That’s a RICO violation right there! Seriously, though, there are the problems that tolerance levels for the stuff vary widely even for first time users (what kills somebody could make somebody else feel like shit and/or start puking his guts out or nothing at all), purity issues, etc. Also, ODs in general are messy…

      1. Yeah, there are much better drugs to kill with than opioids.

        I vote for make it messy.

        1. I agree. Killing somebody should be messy. If the State’s policymakers don’t think it should be messy because of the “ew” factor, then maybe they shouldn’t be done?

  2. “The inmates argued they had a First Amendment right to information that would ensure their Eighth Amendment rights were protected.”

    Is it an infringement on their right to petition for a redress of grievances? I could see that.

  3. Still not sure why the states don’t choose the drug that Oregon uses for assisted suicide.

    1. Because manufacturers of that drug probably place contractual restrictions on its use.

      That’s what caused the current issues: drug manufacturers refusing to sell the drugs to States if they’d be used for the death penalty.

      1. It would be a simple matter to providing the formula to someone who will.

    2. Because the companies that sell it would refuse to give it to them. That’s really the main problem here.

      And I don’t think assisted suicide is something that the state administers. I have no idea if there is a preferred drug to use or not.

  4. I vote for the guillotine. If it was good enough for French royalty, then goddammit, it’s good enough for everybody!

    1. the same could be said of syphilis.

    2. Also, the governor must be required to hold the head up for the crowd to roar in approval.

      1. Ned Stark said that the man who passes the sentence must swing the sword. The governor is the final person to sign a death warrant; ergo, he should be the one carrying out the sentence, whether it be overdose, hanging, firing squad or guillotine.

        1. That might create interesting incentives for the governorship, to put it mildly

      2. also, same could be said of syphilis.

    3. Ironically, the guillotine was invented to provide a more “humane” way of killing people, relative to the methods of the time.

      Its sterile (again, relative) nature likely played a part in how often the guillotine was employed during the French Revolution.

    4. And one other thing I’d like to mention is that you could say precisely the same thing about syphilis.

  5. Whatever the heck veterinarians use seems pretty damn effective, both from the rapidity of death and the relative lack of mess.

    1. This, a thousand times this. Cats and dogs are put down every day, thousands of them, with the owners right there watching. You’d think if there was anything cruel about it, it would be known by now.

      1. I’m sorry to be able say from intimate, personal, recent experience, that the drugs used for putting down dogs are incredibly quick, and apparently painless, moving Fido from here to hereafter in less than 30 seconds, with nothing more than a relaxing of muscles.

        I’m not certain the state should be killing people, but if we are doing it and need to be “humane” (another non-sequitur), what the vets use is just the thing.

  6. Federal Judge Denies Death Row Inmates Access to Information on the Drugs That Will Kill Them

    So what?

  7. The Eighth Amendment was a mistake.

  8. Stupid punk kangaroo court p o s judge.

  9. I sincerely doubt that the convicts are particularly interested in the source of the lethal drugs. Their only legitimate concern is their potency, so that dying is neither unduly painful or prolonged. (I seem to recall a recent case in which someone claimed that one of the drugs was contaminated and could give the condemned meningitis. Really?) The real motive is the appeal lawyers’ desire to picket and threaten the supplier so they won’t furnish the drugs for future executions. This could be bypassed by concealing the source but furnishing samples of the drugs to the legal team for analysis — but the lawyers would have to pay not only for their analysis, but for the state to have its own analysis done as a check.

    On the other hand, I can’t see the fascination with lethal injection. Doctors, understandably, don’t want any part of it, and having prison personnel insert needles is just begging for something to go wrong. Hangings have been botched and firing squads ditto. I don’t recall any misfired executions using the gas chamber, and I don’t believe anyone claimed it caused undue agony. I still like the guillotine, though. I suppose there is a millisecond or two of pain, but it’s over quickly, and there’s no question of waiting around for a doctor to declare the subject dead. Fish the head out of the basket, toss it and the body in the coffin, and it’s all over in time for tea.

  10. Don’t their lawyers have access to the internet where they can research these drugs? Do they want information on rope, bullets, and cyanide in States where hanging, firing squad, and the gas chamber are used?

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