Baze v . Rees
Q & A
18. If states have been using lethal injection for decades, why did it take so long for the courts and the public to learn about the foreseeable risk that inmates will experience excruciating pain during lethal injection execution?
In most states and under the federal death penalty system, officials have kept much about the lethal injection process – from the drafting of the protocols to what takes place during executions –scrupulously secret. Only recently, through litigation, have lawyers and the public gained access to the lethal injection protocols that states and the federal government have been using for decades, exposing the foreseeable risk that inmates will experience unconstitutional pain.
The shroud of secrecy that hides the reality of state and lethal injection procedures has existed and continues to exist on five levels: 1) execution protocols are often kept confidential, protected from scrutiny and oversight, and hiding the incompetence of corrections officials ; 2) the responsibility of creating and carrying out execution procedures is delegated to corrections officials with little or no oversight by democratically accountable representatives; 3) the paralytic drug given to the inmates masks any pain; 4) witnesses are prevented from seeing the entire execution process due to curtain and execution chamber layout and; 5) until lawyers began to challenge lethal injection protocols, most states’ execution records were not publicly available (and many remain unavailable). See Amicus Brief for the American Civil Liberties Union, the ACLU of Kentucky, and the Rutherford Institute, at 4 [“ACLU-Rutherford Amicus Brief ”]. For more information about the use of the paralytic (pancuronium bromide), see answers to questions 9, 10 and 11, and references cited therein.
The majority of states have refused to disclose their lethal injection protocols to the public, preventing meaningful evaluation of the execution process. ACLU-Rutherford Amicus Brief, at 6. In a 2005 study of lethal injection protocols, only six states had protocols that were available to the public. Id. at 7 (citing Denno, Lethal Injection Quandary, 76 Fordham L. Rev. at 95). States even refuse to disclose information about protocols to lawyers during the course of litigation. For example, in Alabama, in response to discovery requests, the state provided attorneys with a heavily redacted copy of their protocol and carried out three more executions before making the full protocol public. Kentucky refused to confirm the existence of a protocol and claimed that even if a policy did exist, it would be exempt from disclosure because of security issues. In Montana, the information that was made public failed to include the specific drugs or doses used to carry out the procedure. See ACLU-Rutherford Amicus Brief, at 6-9. This secrecy also impeded disclosure of evidence that executions were being carried out by poorly qualified and untrained execution team members. As this information has come to light, it has revealed a “pervasive lack of professionalism” in the selection, training, and oversight of those carrying out executions. See Morales v. Tilton, 465 F.Supp. 2d 972, 980 (N.D. Cal. Nov. 27, 2006) (describing the administration of California’s lethal injection process); Amicus Brief for Michael Morales, Michael Taylor, et al., at 8-17.
Second, the majority of states delegate drafting of the protocols to an agency such as the department of corrections without the input or involvement of publically accountable legislators. This has led to secrecy within state governments. See ACLU-Rutherford Amicus Brief, at 14. In some instances, prison officials charged with developing lethal injection protocols were exempt from the requirements of state administrative law, that is, the law that subjects agency regulations to public comment and scrutiny before they can be adopted. For example, in Hill, the Supreme Court noted that Florida’s lethal injection protocols “appear exempt from Florida’s Administrative Procedure Act.” 126 S.Ct. at 2100. The trial court in Bowling determined that the Kentucky Department of Corrections was exempt from that state’s statute. Bowling v. Ky. Dep’t of Corr., No. 06-CI-00574 (Ky. Franklin Cir. Ct. Dec. 27, 2006.) In other states, prison officials proceeded as if they were exempt from these laws, and challenges to their insistence upon secrecy have been raised both in the lethal injection civil rights actions and in separate law suits brought under state administrative procedures legislation. A superior court in California recently declared that the State’s revised lethal injection protocols were void because the Department of Corrections and Rehabilitation was not exempt from California’s Administrative Procedures Act, and the Department had failed to comply with its provisions before adopting the new protocols. See Morales v. California Department of Corrections and Rehabilitation, Marin Co. Superior Court Case No. CV061436, Oct. 31, 2007.
States and the federal government have concealed the execution process itself, shielding witness from fully seeing what goes on during executions and masking the experience of the inmate through the use of the neuromuscular blocking agent, pancuronium bromide. See answers to questions 9, 10, and 11, above, and ACLU-Rutherford Amicus Brief, at 18. Nearly all jurisdictions paralyze inmates before injecting them with the potassium chloride, and the risk – and occurrence – of conscious pain or suffering is often not apparent to execution witnesses. See Morales v. Tilton, 464 F.Supp.2d at 975, 980; Denno, Lethal Injection Quandary, 76 Fordham L. Rev at 55-56. Lawsuits have been filed by various media outlets and organizations such as the ACLU, alleging that the use of pancuronium bromide makes it impossible for witnesses to determine whether inmates are experiencing substantial pain and suffering during their execution. See, e.g., Pacific News Service v. Woodford (filed March 8, 2006) (N.D. Calif. 2006). The curtain in execution chambers, which is drawn and opened at the sole discretion of the warden, also prevents witnesses from observing the entire execution process. Often, the curtain is not opened until after the IV lines are inserted, and are closed at the first sign of trouble. See ACLU-Rutherford Amicus Brief, at 19-21. The use of separate rooms also prevents witnesses from seeing which chemicals are being injected and by whom, and does not permit an evaluation of whether states are following their own protocols. Id. at 21.
Finally, data and records collected during the execution procedure and autopsy reports are not generally made public and do not allow an evaluation of the painlessness of the procedure or adherence to the protocol. See ACLU-Rutherford Amicus Brief, at 22-23. Most states do not release post-execution records, including autopsy reports, toxicology reports, execution logs, and photographs, or release them only under court order and under seal. Id. For the remainder of the states, the important information that could be revealed about execution procedures remains secret. When these records have become public, as in California, they have sometimes revealed evidence that inmates were inadequately anesthetized. See Amicus Brief for Michael Morales, Michael Taylor, et al., at 34-35.
For more information on the lack of transparency in the drafting and administration of lethal injection procedures, see Amicus Brief for the American Civil Liberties Union, the ACLU of Kentucky, and the Rutherford Institute.
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