State Secrecy in Procuring Lethal Injection Drugs Evades Supreme Court Review
By Noah Fortinsky, Former Fried Frank Fellow

In a prior post, we argued that States should disclose where they procure the drugs used for lethal injections.  As more drug companies refuse to manufacture or supply drugs for executions, the States have relied on compounding pharmacies, subject to minimal oversight, to produce the necessary compounds.  It seemed as though the courts would finally decide whether a State’s refusal to provide a death-row inmate with information about the progeny of its lethal injection drugs violates the Eighth Amendment’s prohibition against cruel and unusual punishment.

But the Supreme Court put a halt to that on April 7th, denying petitions for certiorari from Missouri and Louisiana prisoners.  The Court did not provide reasons for denying the petitions, as is its custom, yet the practical result is that more prisoners will be executed having no idea how they will die, a truly macabre prospect.

In denying the Missouri death row prisoner’s petition for review, the Court left intact the Eighth Circuit’s dystopian opinion in In re Lombardi, which essentially requires the prisoner to provide “a plausible allegation of a feasible and more humane alternative method of execution . . . ,” to prove an Eighth Amendment violation.  So to prevail, a prisoner must give the State an alternative, yet more humane, method to kill himself—a dilemma no one should suffer.

In the Louisiana case, Sepulvado v. Jindal, the Fifth Circuit held that the state’s failure to provide information about its lethal injection protocol did not violate the Fourteenth Amendment’s due process clause.  Yet the very next sentence belies the holding: “Perhaps the state’s secrecy masks ‘a substantial risk of serious harm,’ but it does not create one.”  But the only way to know is if the state disclosed its protocol and where it procured the drugs.  Alas, Louisiana prisoners are left in this morbid Catch-22.

And Texas executed two prisoners just last week with drugs procured from unknown sources.  Although the U.S. District Court first stayed the executions, ordering the State of Texas to reveal the supplier of its drugs of execution, the decision was quickly – but perhaps not surprisingly – reversed by the 5th Circuit Court of Appeals.

Still, the fight is not over.  Lawsuits are still pending.  States are executing less people every year.  And as more stories of botched executions come to light as states scramble to find drugs, or haphazardly revise execution protocols, the cruel and unusual aspect of the states’ secrecy will be readily apparent.  Notably, secrecy and experimentation in lethal injection will be squarely addressed in TCP’s groundbreaking new report, Irreversible Error, to be released by TCP’s bipartisan Death Penalty Committee on May 7.

The Supreme Court stepped in to the morass of determining the constitutionality of lethal injection in Baze v. Rees in 2007; but just 7 years later, this decision is nearly moot because no state appears able to procure the three drugs approved by the Court in Baze for execution of prisoners.

Ultimately, the Supreme Court must once again face the disarray of how states execute prisoners and settle the issue once and for all.  Otherwise, we would be left with, as Justice Potter Stewart noted in his Furman v. Georgia concurrence, “this unique penalty . . . so wantonly and so freakishly imposed.”

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