State-sanctioned secrecy in capital punishment
Updated: Oct 19
On Oct. 28, 2021 after being injected with the first of a series of lethal injection drugs, John Marion Grant began to violently convulse, shake and projectile vomit for several minutes. Oklahoma executioners injected Grant with the controversial drug midazolam despite concerns about its tendency to subject individuals to unnecessary and excruciating pain. Grant’s case is but one example of the multitude of botched executions which have occurred in states across the country in recent years. These troubling cases raise questions concerning the legality and morality of particular forms of capital punishment as well as the practice itself. However, it is impossible to holistically examine these questions because Oklahoma and many other states have enacted statutes which protect the anonymity of providers and of the exact contents of particular lethal injection serums.
Since Jan. 2011, 13 states have adopted new secrecy laws which conceal vital information about the execution process. Of the 17 states that carried out lethal injection executions between Jan. 1, 2011 and Aug. 31, 2018, all withheld at least some information about the execution process and all but one withheld information about the source of their execution drugs. These statutes compromise the ability of the public to examine and contest problematic aspects of the criminal justice system as well as their ability to make informed purchasing decisions regarding pharmaceutical companies who produce lethal serums. This veil of secrecy runs contrary to American principals of transparent government operation and the personal freedoms of an informed general public.
An informed American public is vital to the protection and promotion of American liberties and democracy. This is a recognized principle of American society and justice which historically has been instrumental to ensuring accountability in our governing systems. Congress acknowledged the importance of these ideals when it passed the Freedom of Information Act in 1966 to expand public access to federal government information. Such legislation, though federal in nature, reflects a societal desire for institutional commitment to transparency.
In contrast, by enacting secrecy laws, state governments have neglected to adhere to these foundational American principles. The public should be allowed the opportunity to have a fully informed debate on the issues surrounding capital punishment. Recent high-profile cases of botched executions and constitutional questions regarding administration of the death penalty have spurred a rise in national opposition to capital punishment and brought these issues to the front of the public forum. Given this evolving public perspective, it is imperative that the public be able to form opinions based on the totality of the circumstances.
Furthermore, these laws raise due process issues because of their impact on the ability of individuals on death row to address their concerns on appeal. Death penalty secrecy laws effectively prohibit individuals awaiting lethal injection from raising proper appeals on Eighth Amendment grounds. These laws limit public and judicial analysis of lethal injection under the Eighth Amendment which requires that punishments imposed by the government conform to evolving standards of decency. In Baze v. Rees, the Supreme Court articulated that Eighth Amendment prohibits punishment which subjects individuals to a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death. By obstructing the ability of individuals and courts to examine the methods, drugs and manufacturers involved in lethal injection executions, these laws prevent a systemic analysis of problematic drugs and procedures in the context of the Eighth Amendment. Ultimately, to ensure that our governments uphold their constitutional responsibility to treat their prisoners fairly and humanely, death penalty secrecy laws must be abolished so the public can undertake a thorough and comprehensive examination of execution methods.