WATCH: The First Amendment Challenge to the Death Penalty

Do states have the right to conceal the details of how executions are carried out?

This story was first published on March 6, 2015. Here's the original writeup:

Americans may shudder at the barbarity depicted in videos showing public executions by the governments of Iran, Saudi Arabia, and China, but the fact remains that alone among all Western countries, the United States is a death penalty country.

Though the death penalty is legal in the majority of American states, only a handful of them actually carry out executions, numbering in the few dozens annually. Part of the reason the American public maintains a steadfast support of its government killing convicted murderers is due to the cloak of secrecy covering executions and the fact that the most common form of execution, lethal injection, is sold to the public as a medical procedure, akin to putting a sick animal to sleep.

But a series of botched executions in 2014 have exposed a problem largely unknown to the American public: The drugs used for lethal injections are experimental, untested, and proving to be ineffective at killing prisoners without excruciating pain. Just last week, the execution of a woman in Georgia was halted hours before it was scheduled to take place because one of the drugs appeared "cloudy." The last thing the state of Georgia wanted was to join the list of states making a mess of killing people. 

"Since the 70s, America has tried to sanitize the way it kills people in death chambers by saying that this is an act of medical intervention," says Ed Pilkington, chief reporter for The Guardian US. He adds:

By using pharmaceutical drugs to do the killing, they're implying that this process is painless, it's humane, it's very civilized. They've used that as a way of undermining resistance. But now we're seeing pharmaceutical companies, the European Union, interest groups, protest groups, all saying, "Hang on, this is wrong. Medical drugs are created to save lives, to make people's health better, they are not created to kill people."

Richard Dieter, executive director of the Death Penalty Information Center, says skepticism of lethal injection is "not driven by sympathy for the defendants, who committed terrible crimes," but rather, "(the public) doesn't want hear gruesome facts," such as prisoners writhing in agony while strapped to a gurney as their loved ones watch.

Faced with a European Union ban on selling drugs used in lethal injections, death penalty states now rely on compounding pharmacies. These are typically small businesses who produce execution cocktails to order. These compounds are unregulated by the FDA, and their manufacturers are cloaked in secrecy. 

"The Most Visceral Form of Censorship"

Oklahoma is one of the states which relies on compounding pharmacies, and when Clayton Lockett was executed by the state in April 2014, the procedure was anything but quick and painless. It took 43 minutes from the time the first needle was inserted in Lockett's arm for him to die. 

Pilkington describes the scene, as related to him by a Guardian colleague who witnessed Lockett's execution:

He was groaning, he was shouting out. They were finding it impossible to get the vein, so blood was spurting over all the people in the death chamber, I mean it was the most horrendous situation. And right at that moment they decided to shut the curtain, which would prevent any witnesses, including reporters, from seeing what happened.

Pilkington calls this the "most visceral form of censorship" and says "with something as serious as the wielding of state power to kill somebody, there should be maximum transparency," rather than the current system of complete secrecy surrounding every step of the execution process, from the sources of the drugs themselves to the grisly reality when those drugs fail to kill the condemned in a timely and painless fashion. 

Missouri is one of 13 states to have expanded what are known as "black hood laws," which are meant to protect the identities of executioners, to now also make confidential everyone involved in the production and delivery of lethal injection drugs. These laws even supersede the Freedom of Information Act.

In response, The Guardian, Associated Press, and several prominent Missouri newspapers have filed suit against the state, in what is believed to be the First Amendment challenge to the death penalty. The lawsuit argues the public has a First Amendment right to access all information pertaining to government activities in capital cases, beginning in the courtroom, through the death chamber, and into the autopsy room. No court date has been set. 

The increased difficulty for death penalty states to procure lethal injection drugs has led to some anti-death penalty politicians, like Virgina's Governor Terry McAuliffe, to support increased secrecy for lethal injections because the alternative would be to bring back grislier forms of executions, like the firing squad, which Utah is considering, or even the gas chamber, which Missouri is contemplating.

Death penalty states have argued that compounding pharmacies would cease to provide lethal injection drugs if their names were to be made public because it is a very small part of their business and, as Dieter says, "they're not in the business of perfecting executions." Dieter compares these pharmacies to contstruction companies contracted by the government to build bridges. If the bridge fell, the public would demand the right to know who was responsible. He argues that the same level of transparency should apply to executions, especially when they are "botched."

Using the First Amendment to Fight for Eighth Amendment Rights

Following the lead of the Missouri lawsuit, death row inmates in several states have filed suit on the grounds that the drugs they are to be killed with may violate their Eighth Amendment rights prohibiting cruel and unusual punishment. One of these suits was thrown out by a federal judge in Ohio last month. While explaining his ruling, U.S. District Court Judge Gregory L. Frost conceded the "Kafkaesque absurdity" of denying inmates the right to "challenge the use of a drug that will be used to execute them," while noting that the information regarding the drug is denied to them (italics in original):

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.

"There can't be anything as important as the state killing someone," says Ed Pilkington, "Going back to these methods that are very hard to describe as civilized or painless or humane: firing squad, electric chair, or the gas chamber, which has ramifications of what happened in Germany in the 1940s is pretty chilling. I think it becomes much more difficult to put up this facade that the death penalty is not causing anybody discomfort."

Despite the potential of a return to grislier methods of executions, the illusory civility of lethal injection is likely to remain the norm as long as the death penalty is practiced in the U.S. Regarding continued efforts to shield the public from the reality of state executions, Pilkington says, "if people aren't prepared to see what's being done in their name then perhaps they shouldn't be doing it."

About 5.45 minutes.

Produced by Anthony L. Fisher. 

Camera by Josh Swain and Fisher. Graphics by Jason Keisling. Additional assistance by Robert Mariani.

Music: "FOUR YEARS EXACTLY" by Jared C. Balogh (http://www.alteredstateofmine.net)

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