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Death penalty secrecy bill headed to governor’s desk

sm-774 [1]

Secret and swift.

That’s what executions in North Carolina would become under a bill headed to the governor’s desk for signature.

Despite recent examples of botched prosecutions here that sent innocent men to death row – Henry McCollum [2] comes to mind – and botched executions elsewhere in the country, state lawmakers this morning adopted H774 [3], which eliminates obstacles that have kept the state from carrying out the death penalty since 2006.

The bill cuts off public debate by exempting the Department of Public Safety from rule-making requirements when executions are involved, eases restrictions on the type of drug used for lethal injections, and allows medical professionals other than doctors to monitor the process.

It also aims to gag opposition.

State law already protects the identity of people involved in the execution process, but under H774 the manufacturers of the drugs used for lethal injections remain secret as well.

“It is important that the manufacturers be allowed by contract to stay confidential so that they aren’t litigated to death in order to prevent them from selling these drugs to the state,” Sen. Buck Newton said during floor debate Monday night.

Bill sponsor Rep. Leo Daughtry echoed that sentiment a few days earlier when addressing the Senate Judiciary Committee.

“If you tell them where the drug comes from, there will be 300 people outside the building,” he said.

But a quick return to executions is unlikely.

Lawsuits are inevitable, as Newton admitted during debate and his fellow conservatives concede.

“While some people hope this legislation will jump start executions, this bill will actually delay executions for years, creating more lawsuits and costing the state more money,” Ballard Everett of the group NC Conservatives Concerned About the Death Penalty said in a statement [4].

Courts around the country are already addressing claims that similar laws raise Eighth Amendment “cruel and unusual punishment” concerns due to the use of unreliable and untested death drugs as well as First Amendment concerns about lack of transparency and the shutting down of public debate.

The U.S. Supreme Court may also weigh in on the larger question of the constitutionality of the death penalty.

Attorneys in a recently-decided case, Glossip v. Gross [5], have asked the high court to reconsider their case [6] in light of Justice Stephen Breyer’s dissenting opinion – joined in by Justice Ruth Bader Ginsburg – in which he suggests that the court should take another look at the death penalty.

Discussing changes in executions over the years, Breyer wrote:

Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use. . . . [T]hose changes, taken together with my own 20 years of experience on this Court, lead me to believe that the death penalty, in and of itself, now likely constitutes a legally prohibited “cruel and unusual punishment.”

Why the secrecy?

In November 2013, the Department of Public Safety adopted a new protocol for executions [7] that included a switch to single-drug lethal injections.

A lawsuit [8] by death–row inmates challenging the validity of the new protocol [9] because the department failed to follow the requisite rule-making process is still pending in superior court after trips back and forth to federal court and the state Court of Appeals.

H774 undercuts that lawsuit by exempting DPS from rule-making requirements when it comes to executions.

The bill also gives the department wide latitude in selecting the death drug of choice and keeps the identity of the drug’s manufacturer secret.

The switch to the single drug – which as of now is identified in the current protocol as pentobarbital – followed the state’s difficulties obtaining the drugs needed for the three-drug cocktail previously used.

North Carolina is not alone on that front. As manufacturers banned the use of their drugs for death penalty purposes, some states have moved to experimental drug combinations and others have turned to unregulated compounding pharmacies which create made-to-order drugs like pentobarbital.

The results have been gruesome.

As the American Civil Liberties Union points out [10], experimental drug combinations were used in the botched executions of Clayton Lockett in Oklahoma and Dennis McGuire in Ohio — who moved, called out, choked, gasped, snorted and turned blue before dying 20 minutes later.

Executions in South Dakota and Oklahoma using compounded pentobarbital were likewise horrific, including that of Michael Lee Wilson in Oklahoma, whose last words, after being injected with compounded pentobarbital were “I feel my whole body burning.”

Given that, the state’s desire for secrecy becomes self-evident.

As Andrew Cohen points out in The Atlantic [11]:

Bureaucrats know they have been forced to use dicier, less efficient drugs for these executions in the absence of sodium thiopental. They understand that the means by which they are obtaining these drugs, if not outright shady, does not come close to ensuring a level of transparency and independent review that both the medical community, and the legal community, see all the time in the ordinary course of business.

In response to these concerns these officials have not made the process of capital punishment more transparent or made themselves more accountable for the lethal drugs they seek to use in our name. They’ve headed instead in precisely the opposite direction. They have sought to increase secrecy over the drugs they want to use.

Legal challenges ahead

In 2008, the U.S. Supreme Court upheld [12] Kentucky’s three-drug lethal injection protocol on Eighth Amendment grounds, finding that the procedure if followed correctly was the most humane execution process then available.

Drug shortages have since pushed states into trying controversial drugs like pentobarbital from unreliable sources like compounding pharmacies, raising the question of whether these new drugs cause unacceptable and unconstitutional suffering.

In January 2014, the 8th U.S. Circuit Court of Appeals became the first federal appeals court to respond specifically to pentobarbital, upholding Missouri’s use of the drug.

And this past June in Glossip, a deeply-divided U.S. Supreme Court upheld the use of midazolam, a sedative, as the first drug in Oklahoma’s three-drug protocol.

Neither decision marks the end of Eighth Amendment challenges, though, particularly if and as botched executions continue.

First Amendment challenges to state laws that shroud death drugs and their manufacturers in secrecy have had some success, depending on the jurisdiction.

The gist of those challenges [13] is that members of the public have a right to know the details of how their states execute the condemned.

The 9th U.S. Circuit Court of Appeals has acknowledged that right [14] when it comes to viewing executions.

And just this past July, a circuit court in Missouri upheld [15] the public’s right to know the identity of death drug manufacturers.

On the flip side, Georgia’s Supreme Court upheld as constitutional [16] that state’s provision keeping the identity of drug manufacturers secret in May 2014, as did the 11th Circuit Court of Appeals [17] a few months later.

Members of the media and open government advocates here have opposed H774 on First Amendment grounds.

Tim Nelson, an attorney with Brooks Pierce, told the Senate Judiciary Committee last week that both the North Carolina Press Association and the North Carolina Association of Broadcasters objected to the bill “to the extent that it would create additional exceptions to the Public Records Act and keep secret certain records and information that have historically been—and should remain—the property of the people.”

North Carolina courts have not yet weighed in on the issue. But should the governor sign H774 into law, the cases will follow — as death penalty opponents and open public records proponents have hinted and the bill’s sponsors have conceded.

And once again, the state will land in the throes of expensive and protracted litigation over a law passed by its Republican leaders.

Perhaps their brethren with the NC Conservatives Concerned About the Death Penalty said it best:

At a time when it’s become apparent that we are putting innocent men on death row, and wasting millions of taxpayer dollars in the process, the legislature should be seriously considering whether North Carolina needs the death penalty at all, not tinkering with an already-broken process.

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