"The right of freely examining public characters and measures, and of freely communicating thereon... has ever been justly deemed the only effectual guardian of every other right."- James MadisonIn our post-9/11 world, government secrecy has become an accepted norm, whether the topic is national security, government spending or constitutional protocols for executions. (Consider that Americans barely protested at the news that President Bush had authorized government agents to secretly listen in on our phone calls and read our emails.)
Yet transparency in government is critical to maintaining a democracy. Meaningful public review enables citizens to hold their elected officials accountable, which ensures an open and free government. Without transparency in government, those in power fall prey to corruption and general incompetence. The present controversy over lethal injection protocols is a prime example of this.
For three decades, prison employees in states across the nation have implemented virtually every aspect of lethal injection executions, largely outside of public view and without legislative or executive oversight. Unfortunately, the U.S. Supreme Court dodged the issue of government secrecy and its impact on lethal injection procedures and executions when it recently handed down its ruling in Baze v. Rees.
The case challenged Kentucky's lethal injection protocol, which uses a three-drug injection sequence that has been shown to carry an unnecessary risk of inflicting pain on the condemned. Currently, 36 of the 37 states that have the death penalty use lethal injections and have protocols similar to Kentucky's. This method of execution was first used in Oklahoma and then adopted by other states with no scientific study as to its effects on those executed.
However, studies have since indicated that the risks of torturous death are real and significant. In fact, the possibility exists than an inmate executed by lethal injection could remain conscious, experiencing severe pain as he slowly dies. For example, Angel Diaz took more than twice the usual time to die and had to be given a rare second dose of deadly chemicals. Consequently, a medical examiner reported that Diaz had chemical burns on both arms. "It really sounds like he was tortured to death," said Dr. Jonathan Groner of the Ohio State Medical School. Diaz's botched execution led Florida Governor Jeb Bush to suspend all executions.
Regrettably, incompetence resulting in botched executions has become a hallmark of many state and federal executions. Even so, states continue to cloak their lethal injection protocols and executions in secrecy.
For example, some of the most closely guarded secrets relate to the qualifications and training (or lack thereof) of those administering lethal injections, often to the detriment of death row prisoners. In Missouri, for example, when the media uncovered the identity of the state's lethal injection supervisor, they also learned that he had confused dosages during executions and had lost his privileges to practice in two hospitals. Incredibly, after a federal court barred him from participating in Missouri executions, he was hired as part of the federal government's execution team.
Incredibly, the responsibility for creating lethal injection procedures is often delegated to prison employees without discussion, meaningful study or oversight by elected representatives. In California, in response to a federal court order, corrections officials agreed to reexamine their policies but then sought to keep the review process secret. Although the judge denied that request, the construction of a new death chamber began without the public, their elected representatives or even the governor knowing anything about it. Many states even refuse to disclose information about their execution procedures to lawyers whose clients will be subjected to lethal injections.
The shroud of secrecy remains even after an inmate's death, preventing a final assessment of the lethal injection procedure. All but two states maintain complete secrecy regarding post-execution records and autopsies. These records contain data that is critical to evaluating whether inmates were conscious during execution, but government officials refuse to release this information. However, scientists who have studied post-execution materials in the two states where they are available, North Carolina and California, have concluded that lethal injection is not working the way states claim.
The manner in which capital punishment is meted out in this country is nothing less than a travesty of justice. And lethal injections, with their shroud of secrecy, are just one part of the problem. We must hold our government accountable, especially when it comes to the state executing citizens. If we are going to allow the government to kill us, then we certainly need to know all the facts beforehand. Clearly, we are in need of a nationwide moratorium on executions until these matters are sorted out and opened up to public review.
As Supreme Court Justice Louis Brandeis once observed, "Sunlight is the best disinfectant."
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. Mr. Whitehead is also a member of the Constitution Project's bipartisan Death Penalty Committee, a coalition of death penalty opponents and supporters committed to fundamental reforms of capital punishment systems. He can be contacted at johnw@rutherford.org. Information about The Rutherford Institute is available at www.rutherford.org
