Constitutional Law

States Refuse to Give Up Lethal Injection Drug Dealer

By James Clark, ACLU of Southern California

Prison officials around the country are doing everything possible to hide the source of their execution drugs and protect their dealers. Why?

You may have followed the ongoing news stories about lethal injection drug shortages — and the ensuing fiascos — in California, Arizona, Arkansas, Oklahoma and, well, just about any other state that executes people. All of them are struggling to deal with a national shortage of the key execution drug, sodium thiopental. While some states like Oklahoma are desperately trying to come up with 'creative' (read: ridiculous) workarounds, states that have the drug — California, Arizona, Texas — won't say where or how they got it.

Amazingly, Arizona got away with all this secrecy last month. Jeffrey Landrigan was put to death on October 26, when despite protests from his attorneys, a federal district judge, and the 9th Circuit Court of Appeals, the U.S. Supreme Court allowed the execution to go forward without giving the defense an opportunity to evaluate the drugs, which Arizona had admitted were not manufactured in the United States. The Supreme Court said that the defense had to demonstrate that the drug was dangerous before they could find out anything about it — and that cart somehow pulled the horse all the way to the execution chamber.

But last Friday, Texas Attorney General Greg Abbott ordered that state's corrections department to publically disclose the source of its lethal injection drugs, as well as other information including the amount, expiration date, and price. Corrections officials had asked the AG to classify the information as a state secret, on the absurd grounds that if anti-death penalty activists learned this information, they might become violent.

Adopting arguments made by the ACLU (PDF), the AG didn't buy it, noting that the corrections department couldn't explain how this information would actually help these 'potential terrorists' carry out their violent plots. But even after the order to disclose, corrections officials are keeping mum on the source of the drug. They've revealed how much they have, enough to kill 39 people, and the fact that it all goes bad in March 2011. But the corrections department has not released correspondence that could reveal the source of the drug, even though the AG's order requires them to do so.

California is also keeping the source of its stash secret and can't even come up with an excuse for doing so. At the same time as Arizona, California obtained a supply of the drug from an unknown manufacturer, and like Arizona, refused to tell anyone where they got it.

The ACLU of Northern California filed a Public Records Act request seeking information on the state's new supply but — big surprise! — the state won't pony up. In a blatant refusal, corrections officials responded by withholding all relevant records without even offering a justification, even while admitting that at least some of the records are legally public. That led the ACLU to file a lawsuit asking the courts to force the corrections department to turn over the records. On Friday, the Secretary of the California Department of Corrections and Rehabilitation even told a reporter that he knows the public has a right to see 'at least some' of the records. But they still haven't been produced.

Transparency is critical in all areas of government but especially when it comes to executions. When the state takes a life in the name of the people, the people have a right to know the truth about how it is done. As states across the country debate whether the death penalty should be replaced with more effective alternatives, such as life without possibility of parole, the public needs to know the truth about the process, including what lengths government officials are going to in order to keep the machine of death moving.

(Originally posted on Change.org.)

Full post as published by Blog of Rights on November 23, 2010 (boomark / email).