Editor’s Note: Eric Berger is an associate professor of law at the University of Nebraska College of Law. The opinions expressed in this commentary are solely those of the author.
Eric Berger: High court considering whether pain in lethal injections is cruel, unusual
States hide details of death procedures, including executioners' qualifications, he says
This secrecy violates inmates' Eighth Amendment rights, Berger says
Does Oklahoma’s lethal injection procedure violate the Eighth Amendment’s prohibition against cruel and unusual punishment? There is a strong argument that it does. But there is more to it than that.
Here is what is at issue: Oklahoma’s first drug, midazolam, belongs to the benzodiazepine class of drugs. Like other drugs in this class, midazolam can cause unconsciousness and unresponsiveness to minor stimuli, but many medical experts agree that it does not reliably anesthetize people against serious pain.
The problem is that the other drugs in Oklahoma’s protocol indisputably do cause terrific pain in the improperly anesthetized. Because Oklahoma’s first drug cannot protect against that pain, the petitioners contend that the state’s procedure almost certainly will result in cruel and unusual punishment.
You may wonder why there is a case at all, given that the state has selected as an anesthetic a drug that cannot plausibly serve that function. Shouldn’t the dangers of Oklahoma’s procedure be sufficiently obvious that we needn’t bother the Supreme Court about this?
One answer is that the second drug in the protocol is a paralytic that inhibits muscle movement. Oklahoma’s protocol, then, simultaneously creates a grave risk of serious pain and conceals that pain from execution spectators. Executions may appear peaceful, but things may not be what they seem.
Oklahoma and many other states’ use of a paralytic is symptomatic of a broader, national problem: States are able to hide crucial details about their lethal injection procedures before, during and after executions. States often refuse to disclose the training and qualifications of execution team members, the chemical properties of the drugs they use and the precise steps they take to carry out executions.
They also often fail to disclose last-minute changes to their procedures, and when things go awry, they can simply pull the shades to block the witnesses’ views.
States also often refuse to explain how and why they designed their own protocols.
Given this haphazard, unstudied approach to lethal injection, the lack of transparency can help them obscure their own incompetence. For example, when Oklahoma selected midazolam, it did so hastily so it could continue executions without delay. Never did the state conduct a meaningful, transparent analysis of the drug’s relative merits.
Unsurprisingly, these sketchy, secretive procedures create serious risks. Not long after Oklahoma adopted its midazolam protocol, it badly botched the execution of Clayton Lockett, who twitched, gasped and convulsed violently on the gurney. The Lockett botch is hardly anomalous. Oklahoma botched another execution just months before Lockett’s.
Despite this gruesome history, lower courts usually reject inmates’ requests for information about execution procedures. In so doing, these judges ignore important constitutional principles militating for disclosure. Capital inmates possess an implicit Eighth Amendment right protecting them against execution methods creating a substantial risk of serious pain. Without crucial information about these methods, inmates lose the opportunity to safeguard their constitutional rights.
In a variety of contexts, the Supreme Court has emphasized that due process and basic fairness demand that litigants receive notice of the state’s plans for them and an opportunity to challenge those plans. The court has similarly recognized a right to information where necessary to protect a threatened constitutional right. Lower courts, however, are reluctant to examine state execution procedures, and they consistently ignore these well-established legal principles.
To this extent, judges have repeatedly blessed lethal injection procedures about which they know virtually nothing.
Glossip does not raise the secrecy issue directly, but the issue is crucial to the Eighth Amendment values at issue in the case. The parties ask the court to clarify the legal standard for method-of-execution challenges, but the precise contours of that Eighth Amendment standard are largely irrelevant when courts allow states to conceal their procedures’ details.
Indeed, the costs of lethal injection secrecy are far-reaching. Secrecy, quite obviously, deprives inmates of their Eighth Amendment rights. States designing execution protocols without external oversight also often take questionable shortcuts that heighten the risk of pain. The answer is more transparency, not less.
At a minimum, states should make publicly available execution-protocol information bearing on the risk of pain, including the qualifications and training of execution team members, the available equipment, the precise steps of the execution procedure, contingency plans should problems arise, and the chemical properties of the drugs. Significantly, states can disclose this information without compromising the anonymity of their execution team or providing pharmacies.
To date, however, states have not volunteered to share such information, and most courts have not required such disclosure. These failures compromise fundamental norms of fair process and transparent, accountable government. In judging Oklahoma’s deeply flawed protocol, the Supreme Court therefore should address these problems and denounce states’ secretive execution practices.