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A Deadly Secret: States Refuse to Share the Source of Lethal Injection Drugs in Executions

Shhh. It’s a secret. No, it’s not an invitation to a surprise party. Instead, it’s the State of Arizona refusing to reveal the source of the drugs used to inject people in death penalty executions.

Arizona, one of 32 states in the United States that still retain capital punishment, has a major problem. Lethal injection is the method of execution adopted by every death penalty state. The problem is that Arizona, and every other state seeking to impose capital punishment through lethal injection, cannot obtain the deadly ingredients, particularly sodium thiopental, previously used in its lethal injection cocktails. The reason for the drug shortfall is simple. Beginning in 2011, drug companies from around the globe (including some U.S.-based pharmaceutical companies) have refused to supply sodium thiopental to the United States for fear it would be used to execute inmates. Capital punishment has been outlawed in the European Union and throughout much of the developed world, and drug companies do not wish to violate those bans by providing material support to American executions. Since sodium thiopental has a relatively short shelf life, states are running out of the drug and have no ability to find new supplies.

So what is a state to do? One need only look to Arizona’s model: Buy ingredients from a hidden source and concoct some kind of theoretically lethal chemical compound. Do not test it on anything or anyone — make the death chamber the laboratory and the condemned the lab rat. Do not reveal the provider of the drugs or the ingredients of the injection. Litigate your right to keep that information a secret. Defend that right all the way to the United States Supreme Court.

The Latest Botched Execution

In the meantime, Joseph Wood, a convicted murderer, was sitting on Arizona’s death row. It was his turn to be executed. His lawyers requested information about the source of the drugs to be used, but Arizona refused to reveal any information. And up the case went. Defense lawyers argued against secret execution protocols, Arizona defended its need to keep the details hidden. A federal appeals court issued a stay and ordered Arizona to reveal the source of its drugs and the contents. Wood had a reprieve. But only for a moment. The United States Supreme Court lifted that stay. The protocol and the drugs’ source remained secret.

Wood’s execution proceeded. The secret injection was administered. And on Wednesday, July 23rd, Wood lay gasping and snorting for nearly two hours before he finally died. According to one eye witness, Wood appeared much like a fish on land — one who had been caught, reeled in and left on the side of a boat to die. Maybe there are some people who don’t mind if a convicted murderer suffers during the execution process. But lethal injection is supposed to be quick and painless, and the Constitution prohibits cruel and unusual punishment. As Wood’s lawyers unsuccessfully argued in their motion to stay the execution an hour after it began, hours of suffering are neither quick nor painless, and violate the Constitution’s prohibition against punishment that is more than the mere extinguishment of life.

It is not just Arizona who is hiding its lethal injection details. Along with Arizona, Tennessee, Missouri, Georgia and Oklahoma all have versions of laws that allow states to hide the details of their lethal injection ingredients. In January of this year, Oklahoma executed Michael Lee Wilson, who gasped in agony as he cried that his “whole body” was burning. In Oklahoma, as in Arizona, the lethal injection protocol was kept a secret.

The Problem With This Kind of Government Secret

We live in a democracy. We elect our government officials to represent us. In our open society, government secrecy is problematic. Officials are our representatives — which means they have been given the power to do what they do in our names. In our interests. And we should know about it.

In general, when the government doesn’t want me to know something, I’m left wondering exactly what it is that they are hiding. I think it’s fair to say that government secrets, in general, erode the public’s trust. That is not to say that government secrecy is always inappropriate. I can well imagine significant issues of national security that require secrecy to keep our nation, and all of its people, safe.

But a death penalty case is not one of those instances. There is no national security threat at stake. Indeed, the government’s power to take the life of a person as punishment is predicated on a public trust between citizens and its governing bodies to proportionately punish those who are found to have broken the law. The power to extinguish life is the ultimate power, and the government’s authority to do so, by necessity, comes with great public responsibility. For the death penalty process to have any legitimacy, the process must be open and subject to scrutiny. The citizenry must be able to say with certainty that the State acted fairly and appropriately. It is no wonder then that public confidence in the death penalty drops when the system does not function as it should. For instance, when questions are raised about the innocence of people who have been executed, public support for capital punishment goes into a free fall. This is perhaps because there is nothing more horrifying than the specter of an innocent person being put to death in our name by our government — the very government who we have empowered to act on our behalf.

A botched execution also erodes public confidence because it means that something went wrong with the very process of death, which we have entrusted to our leaders. When a government, such as Arizona, hides information such as the source of drugs used in lethal injection, it erodes the public trust. And when those government secrets directly result in a gruesome, prolonged, agonizing execution, public trust is destroyed. Arizona, and states with similar secrecy laws, have asked us to blindly trust them while they secretly invent these deadly cocktails. Can they be surprised at public outrage when it turns out that our blind trust was fully — and foreseeably — unwarranted?

There can be no room for secrets in the administration of death. The stakes for democracy and our justice system are too high.

Published in the Huffington Post on 07/28/2014.

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