Monday, March 24, 2014

Gag orders: Even before drug shortage, Alabama sought secrecy about lethal injection

In Oklahoma, prison officials delayed the lethal injection of convicted murderer Clayton Lockett last week because they didn't have enough drugs to carry out the execution.

In Louisiana, Christopher Sepulvado, sentenced to die for killing his 6-year-old stepson, got a 90-day stay of execution because the state had switched to a new combination of execution drugs.

In Kentucky, executions are on indefinite hold while a judge reviews three different death penalty cocktails proposed by the state.

"We're not even at the point that we can purchase drugs," said Todd Henson, spokesman for the Kentucky Department of Corrections.

Across the country, death penalty states are working feverishly to keep capital punishment on track years after manufacturers of key execution drugs pulled out of the business. Inmates have challenged new drug combinations as potentially cruel and unusual punishments, or on the grounds that they simply have a right to know, in advance, what poisons will be used to kill them.

States have increasingly responded by making large swaths of the death penalty process a secret. At least a half-dozen states have laws on the books that make part or all of the process for lethal injection confidential, and most of those laws have been passed or strengthened since the death-drug shortage began in 2011.

Alabama may soon join them. The House of Representatives voted 77-19 earlier this month to pass a bill that would make confidential the names of people involved in performing executions — and, crucially, the names of the people or companies who make the drugs.

The bill's sponsor, Rep. Lynn Greer, says he's trying to protect drugmakers from harassment — and, by extension, protect lethal injection as a form of execution.

"People in Alabama believe in the death penalty," Greer said. "But we want it to be as humane as it possibly can be."

Opponents of death penalty secrecy say it eliminates oversight in the place where it's most needed.

“This is not a matter of transparency for transparency’s sake,” said Megan McCracken, a lawyer at the Death Penalty Clinic at the University of California Berkeley. “Real legal questions and constitutional issues are at stake, including the risk that the drugs or procedures will lead to gratuitously painful executions.”

Even without a confidentiality law, Alabama is no stranger to secrecy on Death Row. The Department of Corrections has long kept the names of drugmakers a secret "as a matter of policy," according to one spokesman. Court documents show that state officials were seeking — and getting — gag orders to keep the death penalty process under wraps years before the drug shortage hit.


Alabama still has an electric chair. In 2002, however, the state adopted lethal injection as its main form of punishment, with inmates able to opt for electrocution if they prefer it. The chair hasn't been used since then.

Greer says that's clear evidence lethal injection is the most humane way to go. But for those hoping to see a convict pay the ultimate price, lethal injection offers one distinct disadvantage: it brings the health professions into the execution chamber.

The American Medical Association discourages physicians from prescribing or delivering lethal drugs in executions. Drugmakers and pharmacists are, at the very least, queasy about producing death penalty drugs. All of Western Europe — home to some of the world's biggest drug companies — bans capital punishment.

In 2011, American drugmaker Hospira announced it would stop producing sodium thiopental, a drug many states, including Alabama, once used to anesthetize condemned inmates before injecting them with deadly poisons. Hospira said it "never condoned" the use of its drugs in executions, though it took a dispute with an Italian supplier to push the Illinois-based company out of the business altogether.

Later the same year, the European Commission restricted the export of thiopental and several other barbiturates to the U.S. to keep them from being used in executions.

Inmates on Alabama's death row responded to the shift almost immediately. Inmate Jason Oric Williams, in a federal lawsuit, called for a Justice Department investigation of the source of Alabama's remaining thiopental. The Drug Enforcement Agency later seized Alabama's entire supply, which had been given to the state by officials in Tennessee.

Williams was executed a month later with a new drug, pentobarbital, in place of the thiopental. He challenged the pentobarbital cocktail in court, saying it was an untested mixture that could violate the Eighth Amendment ban on cruel and unusual punishment. Four other inmates have made similar challenges since.

It's not just a clever way to postpone an execution, said McCracken, the Death Penalty Clinic lawyer. She said it's possible that some of the new lethal injection cocktails may not actually kill the pain that comes with an injection of deadly drugs.

"If it doesn't work as it's intended to work, the person is not anesthetized," she said. "They're able to feel the burning of the potassium chloride, and the cardiac arrest."

Death penalty opponents point to the January execution of Oklahoma inmate Michael Lee Wilson, whose last words were "I feel my whole body burning," according to the Associated Press. Wilson was executed using pentobarbital, according to the magazine Time.


McCracken and other death penalty critics are also concerned that states are turning to compounding pharmacies — shops that mix drugs in small batches — to make drugs that are no longer available from big manufacturers.

"There should definitely be a more open process, allowing people in the know to assure that these pharmacies can in fact produce a sterile injection," McCracken said.

Compounding pharmacies are exactly what Greer wants to protect with his confidentiality bill. The profit margins for selling small batches of the drugs are low, he said, and small businesses won't provide the drugs if they're subject to being sued or harassed by anti-death-penalty activists.

The only other option, he says, is to return to electrocution as the main means for carrying out capital punishment.

"I can guarantee you someone will write a bill next year to bring back the electric chair," he said.

Greer has hinted in the past that the state is already out of drugs, saying in public meetings that the state needs his bill to resume capital punishment. Alabama executed six men in 2011, but held no executions in 2012 and only one in 2013.

McCracken disputes the notion that states can't get drugs. Executions are still going on, she noted. According to the Death Penalty Information Center, which has tracked all executions since 1976, there were 39 executions in 2013, down from 43 in 2011. Still, executions have been on a downward trend overall since 1999, when 98 people were executed.

Gag orders

Even though Greer's law has yet to pass, there's precious little information on Alabama's response to the seeming shortage of death drugs. The Department of Corrections turned down requests from The Star, the Montgomery Advertiser and the Associated Press for information on where it gets its drugs.

In denying the request, the DOC cited a 2012 court order in a suit by inmate Thomas Arthur, in which both parties agreed to keep new information about the death penalty process confidential if it came up in the course of the case.

Court records show that the DOC asked the court for the confidentiality order and submitted a proposed court order with its request.

In court documents filed after the confidentiality order, transcripts of entire depositions are listed as sealed. There are redacted passages in motions filed after the order, some of which cover entire paragraphs, while others appear to be lists of employees or descriptions of a "pinch test" used to determine whether an inmate is conscious.

Neither DOC employees nor Arthur's attorney, Suhana Han, discussed the case with The Star beyond short emailed statements. But in her statement, Han claims the identities of drug producers were never divulged in the case and shouldn't be subject to the confidentiality order.

The 2012 confidentiality order isn't the first one DOC has sought. In a 2006 case, in which death row inmate Willie McNair challenged Alabama’s lethal injection protocol, the state sought and got a confidentiality order. A year later, the state got a confidentiality order in a similar suit by convicted serial murderer Daniel Siebert.

Thomas Arthur's lawyers cite the 2007 confidentiality order in their own case, opened in 2011. They argue that the confidentiality surrounding the process allows the state to change its death penalty drugs at any time, without notice.

"As a result of this secrecy, no person under sentence of death in Alabama can ever know the drugs to be administered, or the method of administration that will be used to execute him, unless such inmate brings a lawsuit," Arthur's 2011 complaint reads.

The secrecy surrounding lethal injection protocols has itself generated challenges to the death penalty. McCracken said inmates in several states have filed suit based on the idea that they have a right to know the drugs in the cocktail before the execution is carried out.

“They’re saying that when the state can change the protocol in secret, their due process rights are being violated,” McCracken said.

Last week in Mississippi, lawyers for a woman on death row dropped a lawsuit under the state’s public records law after state officials provided the inmate with information about the state’s execution protocol.

Greer's bill, as originally written, would protect the identities of drugmakers and execution participants from discovery even in a court of law. A Senate committee last week approved an amendment that would allow that information to be disclosed by court order. That amendment will face debate again when the bill reaches the Senate.

Greer told The Star Friday that no one told him about the court-imposed confidentiality order when DOC officials asked him to introduce his bill in the House. He has long maintained that the measure is a "departmental bill," which he carries because the DOC was seeking someone to sponsor it.

"I'm just trying to help out," he said.

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