Owing to export bans from Europe on the anesthetic used in lethal injections, a grotesque set of legal battles have emerged in the U.S. over whether inmates scheduled for execution can have access to information about the new, often untested lethal cocktails that will be used to kill them.
This year in U.S. executions opened with a uniquely grim tableau as two executions in which anesthetics obtained from unregulated compounding pharmacies in Oklahoma were used in deaths that were reportedly torturous and long. Lawyers for death row inmate Herbert Smulls had appealed his execution on the grounds that information about the drugs that would be used to kill him were shielded from the inmate and his attorneys. Smulls was killed by the state without this information in February.
Now, however, an Oklahoma judge has ruled that a state law enabling such secrecy over lethal cocktails is unconstitutional. In light of the European ban, death penalty states have used such secrecy laws to cover up their suppliers, even as they rely on more experimental combinations of execution drugs. Madeline Cohen, assistant federal public defender, commented on the significance of the ruling:
Today, Judge Patricia Parrish in Oklahoma City ruled that Oklahoma's secrecy statute is unconstitutional because it denies prisoners facing execution access to the courts. This decision is an important step towards greater transparency and accountability in Oklahoma's execution system.
We hope that no execution will go forward until the state reveals full information about the source of its execution drugs, particularly in light of the new, controversial protocol it unveiled last week, which lists five different methods, four of which appear to require the use of non-FDA approved compounded medicines and two of which are highly experimental.
Particularly in light of that new protocol, we are considering all available legal remedies, including an appeal to the Oklahoma Supreme Court of the claims, denied in today's ruling, that the protocol need not comply with the public notice and hearing requirements of the Administrative Procedures Act, and that the legislature delegated too much discretion to the Department of Corrections to determine execution procedures.