States Going to Great Lengths to Hide Execution Information, Report Says

(CN) - A group advocating of greater access to death penalty-related information paints a grim picture in a new report of states’ attempts to keep specifics of their execution processes hidden from the public. However, supporters of the death penalty say the situation described in the report is a crisis of the anti-death penalty lobby's own making.

In the 85-page report released Tuesday, the Death Penalty Information Center said states are using new and untested drug compounds to execute criminals and they are taking steps, sometimes illegally, to keep information about those drugs out of the public eye.

“Over and over again, states have violated the law in the name of carrying out the law,” said center Executive Director Robert Dunham in a press release accompanying the report. “When the public has uncovered information the states have tried to conceal, it has exposed an ever-expanding scope of misconduct and incompetence.”

“‘Trust me, I’m the Government’ is not an acceptable justification for execution secrecy,” he added.

The report identifies, among other issues, legislative efforts in 13 states to keep execution-related information private. Among them is a Virginia law passed in 2016 law that allows the state to shield the identity of execution drug suppliers.

Signed by the state’s Democratic Governor Terry McAuliffe, and supported by a legal opinion from the state’s Democratic Attorney General Mark Herring, the law represented a uniquely bipartisan effort after state Republicans overcame concerns about government secrecy and voted to enact the new law.

Death penalty advocates scoffed at Tuesday report, saying the issues the Death Penalty Information Center is criticizing are of their own making.

Kent Scheidegger, Legal Director of Criminal Justice Legal Foundation, pointed to efforts by anti-death penalty organizations to highlight and criticize drug manufacturers who supplied lethal injection drugs.

Those campaigns, Scheidegger said, not only lead to the lack of availability of traditional lethal injection drugs, but also forced states to develop new drugs and legislation to protect their execution processes.

“It’s not that [states are] trying to conceal flaws in the process, it’s that they have to keep them confidential or they’ll lose their source of supply,” he said. “You should only keep secret what we have to keep secret and to the extent that it is necessary.”

“Because of the harassment of the suppliers, it has to be done,” he said. But Dunham, in an interview with Courthouse News, pushed back on Scheidegger assessment of the situation.

“Sometimes proponents of capital punishment don’t like the facts,” he said

Dunham said the report doesn’t take a position on the death penalty and it instead aims to highlight how state governments carry out executions. He said the public has the right to know how their elected officials are executing people and that its undemocratic to suggest otherwise.

He also pointed to research that said American’s are less in favor of the death penalty when they find out about the issues that currently exist within the system.

But that hasn’t impacted the public’s overall support for capital punishment. A 2015 YouGov poll found 61 percent of Americans “strongly favor” or “somewhat favor” its continued use.

Dunham said he hopes his organization’s report, while not taking a side on the death penalty itself, will inform those who want to know more but can’t because of state laws.

“It’s not that they can’t carry out executions, it’s that they are having difficulty carrying out executions in a manner that is palatable to the public,” he said, pointing to older forms of execution like the gas chamber or firing squad which have since lost favor with the masses.

“As the drugs that were more effective have become unavailable the states have retreated into secret, less reputable practices,” he said. “Which method of execution is there that is palatable to the public that states are willing to pursue?”

Scheidegger actually has a suggestion: oxygen deprivation. He said the gas can be administered to subjects who quietly fall asleep before the lack of oxygen kills them.

“It’s completely painless,” he said, noting he was subject to oxygen depletion as part of his US Air Force training many years ago. “All that happens is you go to sleep and eventually die.”

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