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The Dying Light

The more death penalty states push for injection secrecy, the more the world pushes back.

December 16, 2014

We started this year with the execution of Dennis McGuire in Ohio, a procedure that went so horribly wrong it left normally stoic eyewitnesses grasping to understand what they had just seen. State officials were trying out a new lethal injection drug cocktail on him, one never before used to kill a human being in this country. But instead of exposing their controversial plan to outside scrutiny, instead of saying to the world “we want to try this new procedure, does anyone have any valid concerns about the drugs or their maker we ought to resolve before we proceed?” they cloaked the work in secrecy.

What happened? It took McGuire 26 minutes to die, far longer than it was supposed to, during which time he was gasping and choking and clenching his fists. How did state officials react? The warden said McGuire’s death “went very well.” Ohio conducted an internal investigation, quickly concluded that McGuire did not suffer any pain, but pledged anyway just in case to increase the dosage of the two drugs for the next execution. It took a concerned federal trial judge in the state to impose a moratorium on executions there, one that still is in place.

How do we end the year in the Buckeye State? With Ohio lawmakers moving to ensure that executions in their state will be even more secret, and thus even more prone to being cruel and unusual, than they were when hapless bureaucrats killed McGuire. Lawmakers in Columbus, at the behest of corrections officials and pharmaceutical companies, just passed the nation’s most stringent lethal injection secrecy measure, one that would guarantee that advocates, journalists, judges, and others will be precluded from obtaining still more basic information about how the state will execute its death row inmates in 2015.

We end the year, too, learning just how badly officials in Oklahoma botched the execution of Clayton Lockett, whose April death was marked by an extraordinary level of violence. We now know, thanks to discovery in a federal lawsuit and no thanks to state officials, that Lockett’s executioners were clueless. They used the wrong needles. They couldn’t properly administer an IV. Blood was everywhere. They didn’t render Lockett fully unconscious before they administered the lethal drugs to kill him. It was a “cluster,” one official was quoted as saying but you know that’s not exactly what he said.

How does this come to pass in a nation that has the Eighth Amendment, the text of which unambiguously precludes ‘cruel and unusual” punishment? Well, for one thing, Oklahoma officials moved before Lockett’s execution to implement new secrecy measures that precluded his lawyers, and state judges, from fully evaluating whether the injection procedures to be used against Lockett comported with constitutional norms. Why did this happen? And why was the Lockett execution a massacre? Here’s one reason. From the testimony of a former corrections official (and omitted from a state report issued earlier this year):

[T]he attorney general’s office, being an elective office, was under a lot of pressure… The, the staff over there was under a lot of pressure to, to say, ‘Get it done,’ you know, and so, yeah, I, I think it was a joint decision but there was, I got to say there was a definite push to make the decision, get it done, hurry up about it.

Before the Lockett execution, two of the three branches of government were in open warfare over injection rules. And as he was dying, bucking and groaning on the gurney with blood spurting out of him, state officials literally drew back a curtain during the Lockett execution so that the witnesses to his killing would not be able to see how gruesome and chaotic the spectacle was as it unfolded in front of them. Indeed, if there were a single moment this year that defines the demise of transparency over capital punishment it was this— government bureaucrats literally hiding their most solemn act from public view. This same dynamic occurred, with or without an actual curtain, all year long in other outlier states.

And all year long the federal courts, including the United States Supreme Court, countenanced this push toward secrecy over death penalty procedures. Only once did five justices in Washington join together to halt an execution that state officials planned to carry out under new secrecy rules. Russell Bucklew’s demise was halted, at least for now, not because of injection secrecy rules but because he has a rare medical condition that would have made the Lockett execution look like a tea party had Missouri proceeded to try to kill him. Missouri, a state so eager to kill in 2014 it did so at least once before the Supreme Court had finished reviewing an appeal.

What we saw in 2014 is the acceleration of a trend in capital punishment and a more fully developed gulf between states that still have the death penalty but rarely use it and those states that have it and feel some great compulsion to speed up the pace of its use. It’s a trend exacerbated by the fact that state officials no longer have supplies of the relatively “safe” drug sodium thiopental to use to execute condemned prisoners. And it’s a gulf caused by the extraordinary (and extraordinarily unconstitutional) measures some states have chosen to hide the alternative methods they have chosen to kill death row inmates.

The irony, of course, is that the more frantic these state officials become to kill capital murderers the less defensible their capital regimes become in the eyes of the law. The more secret they make their executions the more legal and political pressure there is to peek behind the curtain. There is no moral reason in law or fact for Oklahoma or Ohio to still be in the business of capital punishment after what officials there did to Lockett and McGuire. And sooner or later this Supreme Court, yes even this Supreme Court, is going to say so.

(Photo: Thinkstock)

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.