USA: GUARDIAN CHALLENGES LETHAL INJECTION SECRECY IN LANDMARK MISSOURI LAWSUIT

May 15, 2014: the growing secrecy adopted by death penalty states to hide the source of their lethal injection drugs used in executions was challenged in a new lawsuit in Missouri, which argues that the American people have a right to know how the ultimate punishment is being carried out in their name.
The legal challenge, brought by The Guardian, Associated Press and three largest Missouri newspapers – the Kansas City Star, the Springfield News-Leader and the St Louis Post-Dispatch –, calls on state judges to intervene to put a stop to the creeping secrecy that has taken hold in the state in common with many other death penalty jurisdictions. The lawsuit argues that under the first amendment of the US constitution the public has a right of access to know “the type, quality and source of drugs used by a state to execute an individual in the name of the people”.
It is believed to be the first time that the first amendment right of access has been used to challenge secrecy in the application of the death penalty.
Attention has been drawn to the secrecy issue by the botched execution of Clayton Lockett in Oklahoma on 29 April in which the prisoner took 43 minutes to die, apparently in great pain, from an untested cocktail of drugs whose source was not made public. Lockett’s lawyers had argued in advance that he might be subjected to cruel and unusual punishment as a result of the lack of information surrounding the drugs, but the state supreme court allowed the procedure to go ahead having come under intense pressure from local politicians, some of whom threatened to impeach judges.
In October 2013, Missouri changed its so-called “black hood law” that had historically been used to guard the identity of those directly involved in the death process. The department of corrections expanded the definition of its execution team to include pharmacies and “individuals who prescribe, compound, prepare, or otherwise supply the chemicals for use in the lethal injection procedure”.
Six inmates have been executed by Missouri since the new secrecy rules came in – they went to their deaths entirely ignorant of the source or quality of the drugs used to kill them. All that is known is that the pentobarbital that Missouri deploys in executions probably came from a compounding pharmacy – an outlet that makes up small batches of the drug to order in the absence of stringent regulation.
In the wake of the “Lockett case”, Oklahoma has agreed to pause for six months before carrying out any further judicial killings to give time for an internal investigation to be completed. President Obama described the Lockett execution “deeply troubling” and has asked US attorney general Eric Holder to review the way the death penalty is conducted.
A Guardian survey has identified at least 13 states that have changed their rules to withhold from the public all information relating to how they get hold of lethal drugs. They include several of the most active death penalty states including Texas, which has executed seven prisoners in 2014 (as of 29 April), Florida (five), Missouri (four) and Oklahoma (three). (Sources: The Guardian, 15/05/2014)