"Laboratories of democracy" or "machinery of death"? The story of lethal injection secrecy and a call to the Supreme Court for intervention.

• Author: Blyth, Harrison

"A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce, or a Tragedy; or, perhaps both." (1)

CONTENTS INTRODUCTION I. THE STORY BEHIND LETHAL INJECTION SECRECY LAWS II. THE CONSTITUTIONAL CONCERNS WITH LETHAL INJECTION SECRECY LAWS A. In re Lombardi B. Owens v. Hill III. A BRIEF ARGUMENT FOR SUPREME COURT INTERVENTION INTRODUCTION

Lethal injection is by far the most common method of capital punishment in the United States today. Over the course of the last three decades, roughly 85 percent of all executions have been by lethal injection. (2) Many states still have other methods of execution available by law, but in practice only five prisoners have been executed using one of these alternative methods since the turn of the century. (3)

In 1982, Texas became the first state to execute a prisoner by injecting drugs intravenously. (4) While Texas has this landmark to its name, Oklahoma might have made the more influential contribution to the current condition of capital punishment when it became the first state to create lethal injection protocols. (5) The story of how Oklahoma made those first lethal injection protocols serves as a metaphor for the newest evolution of capital punishment protocols and the subject of this Comment: Lethal Injection Secrecy Laws.

Before lethal injection, most states used electrocution as their primary means of capital punishment. Electric chairs, it turns out, are quite expensive. (6) The Oklahoma legislature was struggling with the financial implications of a broken "chair" in the late 1970s when some legislators began to look outside the box, mulling alternative methods of execution that would be cheaper and, hopefully, more humane. (7) Two men, a politician and a doctor, spearheaded the movement to find a way to execute prisoners by injecting deadly drugs. Assembly Member Bill Wiseman, the politician, first approached the state medical board with the idea but was rebuffed over concerns of public perception. (8)

Wiseman then sought the help of Dr. Jay Chapman, the state medical examiner at the time. (9) Despite the fact that Chapman admitted to having "no experience" with creating lethal drug concoctions, Chapman and Wiseman sat down together one day to crank out a lethal injection protocol. (10) Chapman's protocol, as dictated to Wiseman, went as follows: "An intravenous saline drip shall be started in the prisoner's arm, into which shall be introduced a lethal injection consisting of an ultra-short-acting barbiturate in combination with a chemical paralytic." (11)

Another Oklahoma legislator, State Senator Bill Dawson, was also looking into the possibility of a lethal injection protocol. Dawson met with a friend, Dr. Stanley Deutsch, who was the head of the anesthesiology department at Oklahoma Medical School. In a letter that would influence the state legislature's eventual bill, Dr. Deutsch suggested that prisoners be given a heavy dose of an anesthetic. (12) Thus, a three-drug protocol was born: the first drug anesthetized, the second drug paralyzed and ceased breathing, and the third drug stopped the heart. (13) Each drug alone would produce death in the amounts called for by the protocols. (14) When asked why he chose to use three drugs, Chapman responded by saying, "You just wanted to make sure the prisoner was dead at the end, so why not just add a third lethal drug?" (15)

Perhaps the most startling aspect of this story, the story of the birth of lethal injection in the United States as the modern method of capital punishment, (16) is the utter lack of medical or scientific expertise supporting it. Dr. Chapman later described how he came up with the idea of the multiple drug protocol: "I didn't do any research. I just knew from having been placed under anesthesia myself ... what we needed. I wanted to have at least two drugs in doses that would each kill the prisoner, to make sure if one didn't kill him, the other would." (17)

The three-drug protocol was an answer to the political question, "How can the state continue executing prisoners in the wake of Oklahoma's broken electric chair?" Oklahoma and Texas then served as the laboratories for developing and implementing these first lethal injection procedures. Other states fell in line soon after the first years of lethal injection, usually by simply copying the procedures that Oklahoma and Texas had used. (18) These protocols remained in place in most states for about three decades. (19)

The old protocols are now changing in response to a new political impediment to lethal injection: pharmaceutical manufacturers are refusing to provide states with the drugs needed to execute prisoners. (20) At its essence, the problem is lethal injection's version of the broken electric chair. Just like Oklahoma's broken electric chair in the late 1970s, this impediment has state legislatures haphazardly throwing ideas at the wall to see what sticks. As Fordham law professor and noted death penalty scholar Deborah W. Denno puts it, "states are just scrambling for drugs, and they're changing their protocols rapidly and carelessly." (21)

While the new protocols vary among states and are still in their infancy, certain trends are emerging as states try to right the ship as quickly as possible. One common thread connecting nine states, all of which are dealing with similar problems, is the emergence of laws that make confidential certain information concerning the processes involved in creating, distributing, and administering the lethal injection drugs. (22) These laws, Lethal Injection Secrecy Laws, have generated a lot of criticism. (23) Important to this Comment, these laws have also given rise to a number of constitutional challenges brought by prisoners on death row seeking to delay or terminate their executions. (24)

At the heart of each constitutional challenge is a claim that the state's secrecy law violates the Eighth Amendment and the Due Process Clause by depriving the challenger of information needed to show that the execution will be "cruel and unusual." Reviewing courts have generally upheld the laws, but the majority opinions tend to leave some doubt about the constitutional questions. (25)

This Comment is divided into three sections. Part I tells the story of Lethal Injection Secrecy Laws and further explains what the laws do. Part II examines a sampling of the constitutional challenges to state secrecy laws. Part III posits that the Supreme Court standards used by lower courts to uphold the laws are incompatible with the constitutional questions raised by the challenges. Part III ultimately concludes that the Supreme Court should intervene, both to slow the haphazard spread of the secrecy laws and to give lower courts (and states) guidance on the unique constitutional issues the laws present.

1. THE STORY BEHIND LETHAL INJECTION SECRECY LAWS

   This Part is intended to provide the backstory of Lethal Injection Secrecy Laws while highlighting an analogy to Oklahoma's process in creating the original protocols over thirty years ago. It also hints at a theory driving the focus of this Comment: when it comes to the death penalty, the states do not function as the "laboratories of democracy" that is the genius of our federal system. (26) Instead, states act more like mechanics tasked with keeping the "machinery of death" operational. (27)

   In the face of mounting political pressure, pharmaceutical manufacturers have been refusing to provide states with some of the most common drugs used in lethal injection protocols. For example, in 2009, Hospira, Inc. ceased domestic production of sodium thiopental due to a material supply problem. (28) For years, Hospira had been the sole supplier of the anesthetic, the first drug injected in multiple states' three-drug protocol. (29) The company originally planned to continue production at a plant in Italy but faced pressure from increasingly tough export laws in Europe and threat of prosecution from Italian authorities. (30) Consequently, Hospira announced that it would no longer produce sodium thiopental. (31) Although it was not necessarily identified as such at the time, this became a watershed moment for lethal injection protocols; it was the first sign that the thirty-year-old protocols might be failing. (32)

   As mentioned above, the European Union has implemented measures that regulate the export of drugs commonly associated with lethal injections, such as sodium thiopental and pentobarbital. (33) These regulations are important to the story because some of the major producers of those drugs are based in Europe. Perhaps the most important of these producers is a Danish pharmaceutical company, Lundbeck, Inc. Lundbeck has been a particularly critical cog in the states' "machinery of death" because it is the only producer of injectable pentobarbital in the world. (34) Pentobarbital is the most common drug in state lethal injection protocols; " [fourteen states have used pentobarbital in executions"; five states have added pentobarbital to their protocols; and one state, Colorado, lists pentobarbital as a backup anesthetic. (35) In January (2011), Lundbeck announced that it would no longer sell pentobarbital to states for use in executions and that it would forbid buyers from reselling it to states that would use it for lethal injection. (36)

   States subsequently scrambled to keep scheduled executions going. Ohio switched to a two-drug cocktail of midazolam (a sedative and anti-seizure drug) and hydromorphone (a painkiller derived from morphine) in time to execute Dennis McGuire in January 2014. (37) Despite receiving a warning from at least one prominent anesthesiologist that the drugs would produce gasping for air and "a terrible, arduous, tormenting execution," Ohio proceeded with McGuire's execution. (38) The execution lasted about twenty-five minutes, and McGuire "struggled, gasped, and choked for several minutes" before...