Should states be required to disclose which drugs they use to kill people sentenced to the death penalty? In July 2014, the 9^th Circuit Court said, “Yes,” while, in a separate case, the U.S. Supreme Court said, “No.” That judicial disagreement is complicating recently instituted death-penalty procedures, in which states use new combinations of death-inducing drugs—but are reluctant to reveal the sources of those drugs.

In the court of my opinion, however, the answer is, “Yes—states should be required to reveal the composition of their death cocktails and their sources.”

The states involved in these two most recent cases are Arizona and Texas, who along with Missouri, are currently the most active of the 32  death-penalty states in the U.S. The states argue that, under current law, it is their legal duty to carry out the death penalty, and they do not want to be hampered by new rules. For people like me, who oppose the notion that a state has the right to kill someone—no matter how awful the crime he/she has committed—the issue of drug disclosure may represent a way to finally put the death penalty to death in this country.

Here’s how that might happen: As we’ve seen recently, several manufacturers of drugs that have previously been used for executions have stopped selling their products to state prison systems. The manufacturers—who want their drugs to be seen as helpful, curative and life-saving—don’t want them associated with the death penalty and death. Several of these drug companies are based in Europe, where the death penalty is considered anathema. (Countries that employ the death penalty cannot become members of the European Union.) Even US manufacturers are showing reluctance to allow their drugs to be used for executions. And for good reason: Have you seen the proliferation of recent news reports about the protracted deaths associated with some of the newly improvised death-drug cocktails?

The result has been that states have had to scramble for new death-inducing drug combos. They’ve moved on to other drugs—some of them generally used in veterinary care—and other deadly combinations not routinely prescribed for use together. Several states—unable to obtain the preferred execution drugs from manufacturers—are now getting their supplies from compounding pharmacies, who mix up small amounts of the drugs using the same components that a manufacturer would use. In many cases, states do not reveal the names of the compounding pharmacies.

The reason behind this secrecy is obvious: If the names of the new combinations and sources were made public, there could be negative publicity, driving more pharmacies and manufacturers to ban their products from use in executions. And then what would state prison systems do? Revert to the gas chamber? Firing squads? The guillotine? It’s hard to imagine a state wanting to go back to methods viewed as archaic and barbaric. In fact, most don’t want anyone to see much of anything associated with the death penalty: That’s why executions are usually carried out in the middle of the night; and why the identities of the executioners are kept private; and why witnesses to executions are often curtained off at the moment of the injection and don’t see the prisoner die.

So, it’s possible that full disclosure could make the death-penalty so difficult for state prison systems that they would have to abandon it. We’d have a market solution [a manufacturers’ boycott] to a moral issue, and the U.S. would at long last join the rest of the industrialized world in ending the death penalty. I’d even be okay if free-market Reppublicans took credit for that development. Whatever it takes.

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The Bill of Rights may have been passed over 220 years ago, but it seems to still not have been fully enacted. “Missouri executed this man while his appeal was pending,” in The Atlantic, tells the story:

It is 2014, not 1964 or 1914, and yet on Wednesday night [January 2014] a black man in Missouri, a black man convicted by an all-white jury, was executed before his federal appeals had been exhausted. He was executed just moments after reportedly being hauled away by prison guards while he was in the middle of a telephone call discussing his appeals with one of his attorneys. He was executed even though state officials knew that the justices of the United States Supreme Court still were considering his request for relief.[1]

The sixth amendment guarantees all people “the right to a speedy and public trial by an impartial jury” in “all criminal prosecutions,” yet the state of Missouri has denied not just this man, but three others that same right.

Asked repeatedly not to execute Smulls while appeals were pending, state officials failed even to respond to emails from defense attorneys that night while corrections officials went ahead with the execution. Smulls thus was pronounced dead four minutes before the Supreme Court denied his final stay request. This was not an accident or some bureaucratic misunderstanding and did not come as a surprise to Smulls’ lawyers. They say it was the third straight execution in Missouri in which corrections officials went ahead with lethal injection before the courts were through with the condemned man’s appeals.[2]

That the Supreme Court sent a refusal for the appeal is irrelevant. The fact of the matter remains that the state lawyers completely undermined the power of the Supreme Court and the entire concept of equal representation in the American justice system by executing a man before his case was fully considered.

 What happened in Missouri this week is unacceptable in a nation that purports to worship its rule of law. It ought to be unacceptable even to the most ardent supporters of capital punishment. And the worst news of all is that there is no reason to think the problem is going to get better anytime soon. Missouri wasn’t punished for its zealotry. And that surely signals officials in other death penalty states, like Louisiana, that they won’t likely be punished, either, if they execute someone while his appeals still are pending. Herbert Smulls may have deserved to die. But surely not before the Supreme Court was through looking at his case.[3]

 

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