A right to know how you'll die: A First Amendment challenge to state secrecy statutes regarding lethal injection drugs.

• Author: Mennemeier, Kelly A.

In the years since 2008, when the Supreme Court upheld the constitutionality of a commonly used lethal injection protocol in Baze v. Rees, states have shifted away from the approved protocol and turned towards new drugs, drug protocols, and drug sources to carry out state-sponsored executions by lethal injection. Even as states have shifted to new, untested protocols and less-regulated sources than they used in pre-Baze years, state legislatures have enacted and amended secrecy statutes that hide information about the drug protocols and sources of lethal injection drugs from the press, the public, and condemned prisoners. Meanwhile, a number of recent executions have gone awry, with executions lasting far longer than expected or causing apparent pain in prisoners being executed.

State secrecy about execution protocols and drug sources makes it difficult for condemned prisoners to argue about the constitutionality of execution by particular drugs, and prevents the press and the public from evaluating whether lethal injection executions are ethically or constitutionally permissible depending on the drugs being used (and the drugs' quality and quantity). This Comment argues that state secrecy statutes concerning lethal injection drugs are unconstitutional because they impose on the public's presumptive right of access to state-held information of this sort. The Comment explores how the public's right of access derives from the First Amendment, and argues that secrecy laws about lethal injection drug sources and protocols impermissibly burden the public's right of access to that information.

TABLE OF CONTENTS INTRODUCTION 445 I. HISTORY OF LETHAL INJECTION 447 A. A Brief History of State-Sponsored Execution and the Development of Lethal Injection 448 B. Problems with Obtaining Execution Drugs 451 C. A Recent History of Botched Executions 455 II. STATE SECRECY STATUTES 459 A. Statutes Regarding Confidentiality of Execution Drug Suppliers 459 B. Reasons States Have Implemented Secrecy Statutes 462 III. THE PRESUMPTIVE RIGHT OF ACCESS TO INFORMATION 464 A. Right of Access to Government Proceedings 465 B. Right of Access to Judicial Documents 467 C. Right of Access Within Prisons 468 D. Right of Access to Executions 469 IV. THE FIRST AMENDMENT CHALLENGE TO SECRECY STATUTES 472 A. The Right of Access Extends to Information Related to Conducting Executions 472 1. A Qualified Right of Access Exists 473 a. The Tradition of Access to Execution Information 473 b. Access Plays a Significant Positive Role in the Functioning of the Execution Process 476 c. A Call for Access in Glossip v. Gross 481 2. Secrecy Laws Impermissibly Burden the Right of Access 482 B. The Right of Access As Applied to Execution Protocols and Sources 485 1. Cases Brought by Prisoners 485 2. Cases Brought by the Press 486 CONCLUSION 489 APPENDIX: SUPPLIER CONFIDENTIALITY LAWS 490 INTRODUCTION

In January 2014, the Louisiana Department of Corrections (DOC) was having trouble. It was preparing for an execution scheduled for early February 2014, but the DOC's supply of pentobarbital, one of the three drugs required in the state's lethal injection protocol, had expired several months prior. (1) Moreover, the DOC was struggling to find another source for the drug, as most drug manufacturers refuse to sell to prisons that conduct executions. (2) Nine days before the scheduled execution, the state announced a change to the state-approved drug protocol; the Louisiana DOC no longer needed pentobarbital, as the new protocol allowed the execution to be conducted with only two drugs. (3) The state had one of the drugs: midazolam. (4) Five days before the execution, the DOC announced it had obtained the other drug as well: hydromorphone. (5) But the DOC refused to say where it had obtained the drug. According to the DOC, the source of the drugs was confidential and protected even from the condemned prisoner's lawyers. (6)

Several months later, two sources came forward, revealing that the second of the two drugs, the hydromorphone, had been obtained from a Louisiana hospital. (7) The hospital insists it was unaware the drugs it was providing would be used for an execution. (8) Ulysses Gene Thibodeaux, Chief Justice of the Third Circuit Court of Appeals and also a board member for the hospital, stated, "Had we known of the real use ... we never would have [provided the prison with the drugs]." (9)

The Louisiana DOC's secrecy apparently kept even its supplier in the dark about its role in a state execution. (10) Still, Louisiana lawmaker, Senator Joe Lopinto, proposed a bill to protect supplier information even more closely. (11) Senator Lopinto's proposed secrecy statute would have required "the name, address, qualifications, and other identifying information of any person or entity that manufactures, compounds, prescribes, dispenses, supplies, or administers the drugs or supplies utilized in an execution" to remain confidential. (12) Moreover, such information would not be discoverable or admissible as evidence in any proceeding. (13) Ultimately, Senator Lopinto withdrew the bill. (14) But many other states continue to shroud information about executions--particularly information about drug sources and execution protocols--under a veil of secrecy. (15)

Lethal injection has been a permissible means of executing condemned prisoners in the United States since the late 1970s. (16) In 2008, the Supreme Court upheld the constitutionality of the traditional three-drug protocol (sodium thiopental, pancuronium bromide, and potassium chloride) used by many states for executions in Baze v. Rees. (17) Since the Baze decision, however, shortages in the supply of Baze-approved drugs have forced state DOCs to seek alternative sources of execution drugs. (18) As states' drug supplies have run out or expired, U.S. prisons have increasingly turned to new drugs, sought to obtain drugs from unapproved or illegal sources, or looked to compounding pharmacies to procure the drugs. (19) Thus, the drugs currently used tend to come from less regulated sources than they had when Baze was decided. (20) The new protocols and drug sources create a serious risk that executions may be conducted in a manner that causes condemned prisoners excruciating pain as they die. (21)

As prisons have turned to new protocols and drug sources, states have passed, amended, or reinterpreted statutes to make information about the drugs and execution protocols unavailable to condemned prisoners and their attorneys, the public, and sometimes even the courts. (22) For instance, many statutes shield information about execution team members--including the identities of the drug suppliers--from public disclosure. (23) Thus under the secrecy statutes, condemned prisoners and the public alike have no means of obtaining information about the source of the drugs being used in executions.

This Comment argues that secrecy statutes that shield information about drug suppliers and protocols are unconstitutional under First Amendment right of access principles. Part I briefly discusses the history of lethal injection in the United States and the impact of drug unavailability on states that utilize lethal injection as a means of execution. It also provides a sampling of recent lethal injection executions that have gone wrong. Part II describes some of the recent changes to state secrecy statutes that shield details about lethal injection drug protocols and drug sources from disclosure and public scrutiny. Part III describes the public's qualified right of access to information under the First Amendment and explores how courts have applied and extended that right to different types of government information.

Finally, Part IV explains that, under the First Amendment, state secrecy statutes are unconstitutional because they attempt to shield information about drug protocols and drug sources to which condemned prisoners and the public have a right of access. This part applies an existing right of access test to the execution-related information protected by state secrecy statutes. It also examines several recent and pending cases in which plaintiffs have advanced First Amendment right of access arguments.

1. HISTORY OF LETHAL INJECTION

   Section A examines the evolution of the traditions surrounding executions. The section documents the shift from executions as highly public events to proceedings shrouded with secrecy. Additionally, it considers the growing demand for executions that comport with "evolving standards of decency," (24) and how those standards resulted in lethal injection becoming the United States' primary method of executing condemned prisoners.

   Section B addresses problems states have had over the past five years in securing approved execution drugs. As large pharmaceutical companies have ceased production of popular execution drugs, states have turned to less-regulated sources, such as compounding pharmacies, for their drug supply. Additionally, states have amended their approved drug protocols to allow for use of new drugs and drug combinations in executions.

   Finally, Section C details a series of recent botched executions across the country. The problems with these executions highlight the need for information about the drug sources and drugs used by states in executions, since flawed drugs could make executions unconstitutionally cruel and unusual.

   1. A BRIEF HISTORY OF STATE-SPONSORED EXECUTION AND THE DEVELOPMENT OF LETHAL INJECTION

      While traditions surrounding executions have evolved over history, executions are, at their core, public events. Executions are conducted by the state on behalf of the public, with the sanction of the public. The public receives notice of executions. And the public has historically had the ability to see executions carried out. Over time, the public's "notions of decency" as to appropriate methods of execution has evolved. Executions have become increasingly sanitized and...