Among Oklahoma death-row inmate Charles Warren’s final words last Thursday night were, “My body is on fire.” His complaint was not picked up by the microphone in the execution chamber, but by reporters listening through the glass.
As part of a new state policy, the microphone in the execution chamber is turned off after the inmate’s official last words. Oklahoma officials rolled out the new rules after the botched execution last April of Clayton Lockett, who writhed on a gurney for more than 40 minutes before dying.
There is good reason to doubt the truthfulness of Warren’s last words: He was only on a saline drip when he first started complaining. But what is beyond question is the increased secrecy surrounding lethal injections in the U.S.
Over the past several years, Oklahoma and many other states have aggressively blocked news organizations, inmates and advocacy groups from getting more information about the drugs that led to several FUBAR executions. States have refused to disclose where the drugs were obtained, their efficacy, and the qualifications of the corrections officials administering them, among other things.
And in turn, news organizations and lawyers for death row inmates have filed numerous lawsuits over the past year in Oklahoma, Ohio, Missouri, Georgia, Tennessee, Pennsylvania and Arizona challenging these restrictive policies.
“The concern is that, as a matter of government transparency, there are certain actions that the public has a right to know about,” David Schulz, co-director of the Media Freedom and Information Access Clinic at Yale, said in an interview. “That transparency is critical for knowing how executions are carried out. An execution is probably the single most important action a state can take in the name of its citizens.”
Schulz is representing several news organizations in one of three lawsuits challenging Missouri’s secretive lethal injection policies. A judge heard arguments in all three cases on Wednesday.
The Associated Press, The Guardian U.S., The Kansas City Star, the St. Louis Post-Dispatch and the Springfield News-Leader argue that the Missouri Department of Correction’s denial of public records requests regarding lethal injections violates the Missouri Sunshine Law, as well as the First and Fourteenth Amendments of the Constitution.
Missouri officials contend much of the information is exempt under Missouri’s “black hood” law, which protects the identity of executioners. Schulz said the Department of Corrections used to interpret the statute as protecting only the execution team and medical personnel in the execution chamber. However, in October 2013 the state broadened the statute to cover pharmacies and “individuals who prescribe, compound, prepare, or otherwise supply the chemicals for use in the lethal injection procedure.”
“We think its highly significant that when state officials originally issued execution protocols, they did not include the pharmacists,” Bernie Rhodes, another lawyer representing the news organizations, said in an interview following Wednesday’s hearing. “It was only when they had trouble finding pharmacies that they rewrote the protocols.”
Rhodes said the judge did not appear to lean one way or another during the hearing. A decision on whether or not Missouri is complying with its transparency laws is expected in about two weeks.
The Missouri Times reported last year that the state went so far to avoid leaving any paper trail that a state official drove to neighboring Oklahoma and paid $11,000 in cash for lethal injection drugs, essentially acting as a drug mule.
Missouri and several other states with similar laws say the pharmacies require anonymity to protect them from harassment, and that many pharmacies might stop making the drugs altogether if they are at risk of being identified.
Here’s how Dorinda Carter, a spokeswoman for the Tennessee Department of Correction, explained it to The Tennessean: "There were persons or entities able and willing to supply the necessary chemicals, but they were unwilling to do so without the protection of confidentiality.”
In 2011, the European Union banned the export of sodium thiopental, the primary drug used in lethal injections in the U.S. And as reserves of the drug ran out, states turned to lightly regulated compounding pharmacies to put together new cocktails.
Oklahoma, Florida and several other states rely on a combination of the sedative midazolam and one or two other drugs. Midazolam is not approved for use as a general anesthetic by the FDA. In 2014, three botched lethal injections in Oklahoma, Arizona, and Ohio involved midazolam.
To understand why reporters are so interested in digging up records on new lethal injection protocols—and perhaps why state officials are so eager to hide them—consider Mike Oakley, the former general counsel for the Oklahoma Department of Corrections. According to court filings, Oakley said his research on midazolam included "WikiLeaks or whatever it is."
Or take Dr. Roswell Evans, whom the state of Oklahoma presented as an expert witness on midazolam in a 10th Circuit case challenging the constitutionality of its execution protocols. Evans testified that, although midazolam wasn’t commonly used as an anesthetic, it functioned like one at high enough doses.
In a dissenting opinion to a 5-4 Supreme Court decision rejecting a last minute appeal to halt Warner’s execution, Justice Sonia Sotomayor noted that Evans’ sourcing was, shall we say, a little thin.
“In contending that midazolam will work as the State intends, Dr. Evans cited no studies, but instead appeared to rely primarily on the web site Drugs.com,” Sotomayor wrote.
So, to recap: America’s neurotic position of keeping the death penalty legal, while also requiring it to be as bloodless and sterile as possible, has led to a situation where states are relying on experimental combinations of drugs that are vetted by a quick glance at popular reference websites and purchased in secret from anonymous, barely regulated pharmacies with significantly less reliable products than major pharmaceutical companies.
Ohio announced it would stop using midazolam earlier this month, instead opting for two other drugs that will likely have to come from compounding pharmacies. Naturally, the Ohio legislature passed a law in December shielding the identity of such pharmacies.
On Monday, attorneys for four Ohio death-row inmates filed a petition asking a federal court to stop the law from taking effect, arguing it violated the inmates’ First Amendment right to free speech and to petition the government.
After Lockett’s botched execution in 2014, Oklahoma Gov. Mary Fallin halted all executions in the state and ordered an internal review and overhaul of the state’s lethal injection protocols.
Oklahoma’s new policies include more training and a higher dosage of midazolam, equal to that administered in Florida, where lethal injections have gone relatively smoother. Oklahoma also expanded its execution chamber to hold more monitoring equipment.
It was surely just a coincidence that the expanded chamber came at the expense of the size of the witness room and required the state to cut the number of media observers at executions from 12 to five.
Or maybe it wasn’t. Corrections officials told local news outlet KFOR that even if there is space available, they would not allow more journalists inside the witness room.
Among the reporters excluded from the witness room last Thursday night was The Oklahoman’s Graham Lee Brewer. Brewer covered the Lockett execution, where officials drew a curtain over the viewing window when Lockett began writhing on the gurney. (The ACLU promptly filed a lawsuit against the state for drawing the curtain.)
However, Brewer’s newspaper is no longer guaranteed a spot under the new rules. Brewer lost out to an AP reporter and four television stations.
But Brewer said being excluded from the witness room isn’t as frustrating as not being able to get his hands on state records. As part of Fallin’s review, investigators interviewed more than 100 corrections officials, witnesses and experts about went wrong at Lockett’s execution. None of those interviews have been released.
“Those interview transcripts are where all the good stuff is,” Brewer said in an interview. “Unfortunately those documents have been sealed by a federal court. As a reporter, that’s the kind of information I want.”
If Oklahoma and like-minded states have their way, Brewer and other reporters will never get it.