April 6, 2014 04:28PM
By Jim Salter and Andrew Welsh-Huggins
ST. LOUIS — Dating to the days when the guillotine operator or the hangman wore a mask, a certain amount of anonymity has always surrounded executions. But that secrecy is increasingly coming under fire, with judges, death penalty opponents and lawyers questioning why so little can be known about a state’s most solemn responsibility.
An Associated Press survey of the 32 death penalty states found that the vast majority refuse to disclose the source of their execution drugs. The states cloaked in secrecy include some with the most active death chambers — among them Texas, Florida, Oklahoma and Missouri.
Most states have recently begun relying on loosely regulated “compounding pharmacies” for execution drugs but refuse to name them, citing concerns about backlash that could endanger the supplier’s safety. But many states refuse to provide even more basic information — how much of the drug is on hand, the expiration date, how it is tested. Those who question the secrecy wonder how an inmate’s constitutional right against cruel and unusual punishment can be guaranteed if nothing is known about the drug being used to kill him.
“As far as we know, it could be coming from a veterinary source, it could be coming from some dark corner of the Internet,” said Cheryl Pilate, a Kansas City, Mo., attorney who handles death row appeals. “We simply don’t know.”
The most prolific death penalty states have successfully deflected most challenges to secretive protocols. But momentum is building toward unlocking details.
Following a Missouri execution in December, a federal appeals judge wrote in a dissenting opinion that the state was using “shadow pharmacies hidden behind the hangman’s hood.” The state has executed three other men since then.
Last week, an Oklahoma judge voided the state’s execution law, agreeing with two inmates who claimed a “veil of secrecy” that prevents them from obtaining information about lethal injection drugs violated their constitutional rights.
And on Wednesday, a federal judge in Texas halted the scheduled execution of a serial killer, ordering the state to disclose the supplier of a new batch of drugs, as well as information on how they are tested. A federal appeals court threw out that ruling hours later, and Tommy Lynn Sells was put to death Thursday after the U.S. Supreme Court refused to step in.
To many death penalty supporters, the debate over secrecy is a ploy to delay executions.
“We’re overly worried about the convict,” said Jim Hall, of suburban St. Louis. His daughter, 17-year-old Kelli Hall, was abducted from a St. Charles, Mo., gas station in 1989 and murdered. Hall watched last week as Jeffrey Ferguson was put to death with pentobarbital.
“The pentobarbital, from what I saw at the execution, has got to be one of the most humane ways of executing these people,” Hall said. None of the five inmates put to death in Missouri since November showed distress.
Kent Scheidegger, legal director of the California-based Criminal Justice Legal Foundation, which supports capital punishment, said forcing states to reveal their drug source can amount to obstruction of justice.
“People who have already waited 20 years for justice, to be told, after the case has been thoroughly reviewed, ‘You still can’t have justice because of a restriction on the lethal injection chemicals,’ that’s preposterous,” Scheidegger said.
The concern, critics say, is that a poorly made drug could cause suffering. Convicted killers may not generate much sympathy, but lawyers note the Constitution applies to them, too.
Lack of transparency limits the ability of outsiders to evaluate quality control, said Rebecca Dresser, a professor of law and medical ethics at Washington University in St. Louis. That argument goes beyond the mere legal into the ethical realm, she said.
“Lethal injection is supposed to be a humane method of execution, so the risk is that by a lack of adequate quality control, the execution may not be humane,” Dresser said. “The ethical concern would be that they’re allowing unjustified pain or distress.”
The issue of quality control came into stark relief in 2012 when an outbreak of meningitis that killed 64 and sickened hundreds was traced to a compounding facility in Massachusetts. Critics of drug secrecy have cited the outbreak as an example of what can happen without tighter monitoring.
Traditionally, executioners in the U.S. were hidden from the public, performing hangings or electrocutions while wearing masks or behind walls, since many were despised. Likewise, several states now have secrecy laws or policies shielding the source of execution drugs, including Arkansas, Colorado, Georgia, Louisiana, Mississippi, Missouri, Oklahoma, South Dakota and Texas. Many protocols were adopted in the past year specifically to mask the drugmaker’s identity.
The trend toward secrecy was spurred by states being forced to obtain non-federally regulated versions of drugs from compounding pharmacies, said Jen Moreno, an attorney with the Law Death Penalty Clinic at the University of California-Berkeley.
Compounding pharmacies make drugs for individual clients. They are subject to less scrutiny because they produce a fraction of a national manufacturer’s output and, they argue, added regulations could harm their ability to provide doses not always available in big batches.
At least one case highlights how states have a stake in keeping the supplier’s name secret.
When death penalty opponents and media reported that a Tulsa, Okla., pharmacy called the Apothecary Shoppe provided compounded pentobarbital for Missouri executions, it became the subject of a protest, a lawsuit by an inmate and news stories.
The suit was settled when the pharmacy agreed to not provide the drug, and Missouri had to scramble to find a new supplier.
Texas has cited threats of violence against suppliers. An attorney for the prison system argued in a brief this week that someone “threatened to blow up a truck full of fertilizer” outside a pharmacy that provides execution drugs for another state. The AP could find no evidence that any related investigation is underway in Texas.
Officials in Oklahoma and Missouri also argue anonymity is important to protect the safety of those involved in executions.
Delaware, Nevada, Ohio and Virginia are exceptions to the secrecy rule. Three of the four have purchased their execution drugs from Cardinal Health, headquartered in Dublin, Ohio. A spokesman for Cardinal Health declined to comment on the secrecy issue.
Ohio bought its two execution drugs, made by Hospira, from the distributor McKesson Corp. Hospira no longer sells drugs for use in executions, but the state has enough on hand for upcoming executions. McKesson has refused to comment.
Jim Hall acknowledged that in the past, he sometimes thought convicted killers should be shown no mercy — perhaps killed by the same method they used for their victims. Watching the death of the man who killed his daughter changed him. Still, he’d like to see issues surrounding the drugs resolved.
“I think every state in the union should use one supplier,” Hall said. “That supplier can be vetted at least one time, the drug can be tested. That would stop a lot of this stuff.”