America stands alone among Western nations for its use of the death penalty, but the number of prisoners it executes has slowed to a trickle in recent years ─ partly due to a lack of drugs.
Death sentences carried out by lethal injection have fallen dramatically since a European export ban stopped pharmaceutical companies that produce the drugs from sending them to US prisons.
Now some states facing shortages of such substances believe they have found a solution: guaranteeing anonymity to pharmaceutical companies that manufacture them.
But experts say that strategy comes with risks.
Already slowing for several years, the number of US executions dropped to 28 in 2015, the lowest since 1991. The drug shortage is one reason for that ─ alongside falling crime rates, flagging public support or capital punishment, and its high cost.
Last week, Virginia became the latest state to look to secrecy as a way of reviving the pace of executions after Governor Terry McAuliffe suggested amending legislation currently under debate.
He recommended officials be allowed to obtain lethal drugs for executions on an emergency basis, keeping the identities of companies providing the drugs secret.
Arkansas, Missouri and Ohio have already adopted similar measures with mixed initial results. McAuliffe, a Democrat, presented his idea as a “reasonable compromise” that would help kill a measure to make the electric chair mandatory when drugs for lethal injections are unavailable ─ a proposal backed by the Republicans who control the state legislature.
But anti-death penalty activists criticized the debate for offering a flawed choice between two means of meting out death.
“The governor’s proposal would replace a barbaric practice (the electric chair) with a constitutionally suspect one (a veil of secrecy over executions),” a Washington Post editorial said.
Secret sources:
A number of Republican politicians have welcomed McAuliffe’s amendment, however, seeing it as an acceptable way out of the current impasse.
It has essentially fallen to the states ─ which can choose whether or not to institute the death penalty ─ to run the obstacle courses now necessary for obtaining the three drugs.
The shortages have prompted some of them to quietly turn to companies not approved by the Food and Drug Administration, or to violate US federal law by finding secret sources abroad.
Just this week the state of Texas ─ which carries out a majority of all US executions ─ was blocked by the agency for the second time in a year from importing the unapproved drug sodium thiopental.
The Texas Department of Criminal Justice said it was “reviewing the tentative decision by the Food and Drug Administration and exploring its options moving forward regarding the lawful importation of drugs used in the lethal injection process.”
Prisons generally use a cocktail of three drugs to execute the condemned, including one that knocks them unconscious, another that paralyzes muscles and a third that stops the heart.
Some of the lethal-injection executions carried out since 2014 have been widely criticized after they made prisoners die slowly in agony, gasping, groaning and wracked by convulsions.
The Constitution’s Eighth Amendment bans “cruel and unusual punishment” and defense lawyers have not hesitated to launch last-minute appeals questioning the effectiveness of various drugs, often successfully.
Experts say the moves toward secrecy will provide more grounds for challenging scheduled executions, while news media will probably demand to know drug manufacturers’ identities, relying on the First Amendment right to freedom of the press.
“State execution secrecy laws also raise questions about obstructing enforcement of federal drug laws against illegal compounding activities,” says Robert Dunham, director of the Death Penalty Information Center.
Multiplying appeals:
Legal action against the murkiness surrounding pharmaceutical companies providing drugs for lethal injections has been quick to start.
In Arkansas, where the authorities want to resume putting prisoners to death after a decade’s hiatus, a judge in October halted the executions of eight death-row inmates who demanded to know what products would be injected into them. Last week, the state’s Supreme Court said it would take up the case.
In Ohio and Missouri, death row also appears to lead to courtrooms more frequently than execution chambers.
The future for secrecy laws is far from clear.
“It is hard to predict how the different state courts will rule,” says Dale Baich, a lawyer who specializes in the death penalty. “Some have ordered the information to be released and others have upheld secrecy.”
Since secrecy statutes are state laws, the Supreme Court is unlikely to weigh in, he adds, meaning each state will continue grappling with a punishment that’s increasingly coming under fire.
