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Media Organizations Challenge Secrecy Around Execution Drugs for Lethal Injections

Five media organizations are challenging Missouri’s Department of Corrections, which is keeping critical information about execution drugs that are being used for lethal injections secret.

The Guardian, the Associated Press, and three of the largest newspapers in Missouri, The Kansas City Star, the St. Louis Post-Dispatch and Springfield News-Leader, have all reported on the death penalty in Missouri. They believe that the DOC should not be able to reinterpret the meaning of “execution team” so it includes the drug supplier in order to conceal additional details on executions.

“DOC’s refusal to disclose critical information as to the nature and source of the drugs used violates” the state’s “Sunshine Law” and the “qualified right of access to government proceedings and records guaranteed to the public by the First and Fourteenth Amendments to the United States Constitution,” the organizations argue.

Each of the organizations have sought information on the “name, chemical composition, concentration, and source of the drugs
approved for use in lethal injection executions.” They have sought information on “all quality tests performed” by the DOC on execution drugs. They have sought information on contractors and/or employees who have been involved in “procurement, testing or administration of any execution drugs.” And they have sought “policy statements, regulations or memoranda reflecting the assessment or approval of drugs for use in lethal injection executions.

The DOC changed its policy on October 22, 2013, and no longer will disclose information on execution drugs. So, when the organizations submitted requests for information under the “Sunshine Law” in April, they were denied records.

A nearly identical lawsuit was also filed by the Reporters Committee for Freedom of the Press (RCFP), the American Civil Liberties Union of Missouri and a reporter for St. Louis Public Radio, Christopher S. McDaniel.

These organizations argue the state is violating its “Sunshine Law,” which was enacted in 1973, by “concealing information and keeping the public from fully understanding the workings of its government.”

McDaniel has sought records on the “license of the pharmacy that compounded the pentobarbital for the Missouri Department of Corrections for use in its November 2013 execution.” He also has sought records on “correspondence with the Apothecary Shoppe,” “payment for members of the execution team or testing laboratory,” and records on “midazolam and hydromorphone.”

The public radio reporter was denied access to many of the records he had requested.

The ACLU requested phone records and email messages on the compounding of pharmaceuticals and their use in executions. They asked for records on the “source of all pentobarbital in the DOC’s current inventory.” Some records were provided and access to others were denied.

An interactive journalism project by the Guardian highlights how thirteen states, including Missouri, have “recently hidden the supply of their lethal drugs behind new secrecy rules” in order to prevent Americans “from knowing how prisoners are killed in their name.”

Seven states, including Missouri, began to assert a greater level of secrecy last year either through laws or after favorable judicial decisions.

In Texas, where 515 lethal injections have taken place since the death penalty was reinstated on 1976, the Guardian indicates that the Texas attorney general’s office has suggested information should be made available to the public, however, “the Texas Department of Criminal Justice has not complied with open-records requests seeking drug details.”

Forty-two lethal injections have been carried out in Florida since 1976. The state has a law that conceals information “which identifies an executioner, or any person prescribing, preparing, compounding, dispensing or administering a lethal injection.”

Prison officials in Delaware claimed “the execution protocol was effectively a statute entitling the department to withhold supplier identities to protect them from harassment” when AP requested records.

A judge in Colorado “ordered a redacted execution protocol to be released but allowed the state to keep secret details about where the drugs came from.” He decided, “The public may have an interest in knowing who the pharmacies are…however, knowledge of the source of the drugs used will not facilitate Colorado’s public discussion about the death penalty…Further, the disclosure…could impact the availability of the drug and create unnecessary interference.”

On April 29, Clayton Lockett was scheduled for execution, along with Charles Warner, in Oklahoma. Secrecy shrouded the nature of the drugs that were going to be used to put him to death. The state would not release any information on what effects it predicted the drugs may have, even though they were using an experimental drug protocol that included a paralytic.

The Death Penalty Information Center (DPIC) recounts, “Ten minutes after the administration of the first drug, a sedative, the physician supervising the process (whose very presence violated ethical standards of several medical organizations) announced that the inmate was unconscious, and therefore ready to receive the other two drugs that would actually kill him. Those two drugs were known to cause excruciating pain if the recipient was conscious.”

“Indeed, Mr. Lockett was not unconscious. Three minutes after the latter two drugs were injected, ‘Lockett began breathing heavily, writhing on the gurney, clenching his teeth and straining to lift his head off the pillow.’ Officials then lowered the blinds to prohibit witnesses from seeing what was going on, and 15 minutes later the witnesses were ordered to leave the room.”

The execution was “botched.” Lockett was pronounced dead just over 40 minutes later and Warner’s execution was put on hold.

According to DPIC, at least forty-four executions have taken place since 1982 that were “botched.” Two involved gas, ten involved electrocution and 32 involved lethal injection.

Photo from California Department of Corrections

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."