Faculty Notes

Prof. Eric Freedman Comments in WSJ Story on Lawsuits Over Lethal-Injection-Drug Secrecy

Eric M. Freedman, Maurice A. Deane Distinguished Professor of Constitutional Law

Secrecy Over Executions Faces Challenges
Trend Not to Divulge Details Such as Provenance of Lethal-Injection Drugs Has Triggered Lawsuits by Condemned
By Ashby Jones
The Wall Street Journal
July 27, 2014


Details on capital punishment have gone behind the curtain, a trend that states call necessary but death-penalty opponents contend allows execution methods that may violate the U.S. Constitution.

The latest battle over secrecy culminated last week in Arizona’s execution of Joseph R. Wood III, a convicted murderer whose death by lethal injection took nearly two hours and was marked by repeated bouts of labored breathing.

State officials had disclosed basic facts about the execution, but they had refused to divulge other information, largely relying on an Arizona statute that shields the identity of executioners. The U.S. Supreme Court allowed the execution to proceed. …

Many states have long had laws like Arizona’s, designed largely to protect state employees from retribution. Other states, including Georgia, Tennessee and South Dakota, have in recent years changed their laws to cut access to information about pending executions, including the provenance of the lethal-injection drugs and information on why states chose the protocols they did.

The move toward secrecy comes as states struggle to carry out capital punishment in a way that comports both with the Constitution’s ban on “cruel and unusual punishment” and the desire for executions that are less gruesome than older methods, such as the electric chair or death by hanging.

But the trend has triggered a wave of lawsuits by the condemned, who argue they need details about the procedures, some of which rely on new drugs largely untested in lethal injections and have led to drawn-out executions. Without the information, they argue, they are unable to determine whether an execution runs the risk of causing needless pain and possibly violating the Constitution. …

States argue the disclosure of sensitive information, especially about the pharmacies involved, might jeopardize executions by making drugs even harder—or impossible—to obtain.  …

Experts predict the issue ultimately will reach the U.S. Supreme Court. “Sooner or later, the justices are likely to weigh in,” said Eric M. Freedman, a law professor at Hofstra University and counsel to several death-row inmates challenging Florida’s policies. “The stakes are just too high.”

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