Deciding if Inmates Get to Know How They’ll Be ExecutedDeborah Denno in The New York Times, March 10, 2014
Deciding if Inmates Get to Know How They’ll Be Executed
By ADAM LIPTAK
WASHINGTON — The capital justice system is in turmoil, with drug shortages leading states to use secret and suspect chemicals to execute condemned inmates.
“We’ve never seen so many changes and so many troubles in getting these drugs,” said Deborah Denno, a law professor at Fordham and a leading authority on methods of execution. “The states are more secret than they’ve ever been. And it’s a much riskier process than it’s ever been.”
In a little-noticed dissent last month, three Supreme Court justices suggested that it was time for their court to resolve the crucial threshold question: Are death row inmates entitled to know how the government means to kill them?
That information is a “state secret,” prison officials say. But it is hard to see how death row inmates can argue that a given method of execution violates the Eighth Amendment’s prohibition of cruel and unusual punishment if they are barred from knowing what the method is.
The dissent, written by Justice Ruth Bader Ginsburg on Feb. 25, was only a sentence long. It said that she, along with Justices Sonia Sotomayor and Elena Kagan, would have granted a stay of execution to a condemned inmate in Missouri so the court could consider whether to hear his appeal “in the ordinary course.” The inmate, Michael A. Taylor, was executed hours later, just after midnight.
The dissent was, in truth, pretty cryptic. But Justice Ginsburg tipped her hand with one phrase, saying a hard look at the case was needed “for reasons well stated” by Judge Kermit E. Bye of the federal appeals court in St. Louis. Judge Bye had filed a statement when he failed to persuade his court to stop Mr. Taylor’s execution.
“Missouri has again, at the eleventh hour, amended its procedure and again is using a shadow pharmacy hidden behind the hangman’s hood,” Judge Bye wrote. He was referring to compounding pharmacies, which are lightly regulated and could be, he said, “nothing more than a high school chemistry class.”
The issue will return to the Supreme Court in coming weeks, in cases from Missouri and Louisiana.
The inmates in those cases will have to overcome what Michael Dorf, a law professor at Cornell, has called the court’s skepticism of “opportunistic” capital litigation, including “challenges to a particular method of execution by lawyers who believe that all methods are unconstitutional.”
But Professor Denno said the problems are authentic. “It’s not just a ruse created by abolitionists,” she said.
In January, executions in two states seemed to go awry. An Oklahoma inmate’s last words, 12 seconds after he was injected with lethal chemicals, were: “I feel my whole body burning.” A week later, an Ohio inmate “struggled, made guttural noises, gasped for air and choked for about 10 minutes before succumbing to a new, two-drug execution method,” according to The Columbus Dispatch.
In light of those developments, what the new challenges are asking for is modest. They want information to use in making their arguments, which may well fail.
“Either this is unreasonably painful or it’s not,” said Elizabeth Unger Carlyle, who represents a group of death row inmates in Missouri. They have asked the Supreme Court for help after Judge Bye’s court, the United States Court of Appeals for the Eighth Circuit, erected what they say is a perverse hurdle.
Before the inmates can be told what chemicals the state means to use to kill them, the court said, they must first propose an acceptable alternative method for their own executions.
That macabre requirement creates “a severe and darkly ironic conflict” for lawyers, according to a supporting brief in the case, Zink v. Lombardi, No. 13-8435.
“The principal goal of any lawyer representing a death row client is to prevent his client’s execution,” said the brief, filed by a law school clinic at Yale called the Ethics Bureau. The appeals court, it said, “would require the lawyer to actively advocate for a particular means of achieving his client’s death in the course of attempting to avert it.”
In a Supreme Court filing last week, Missouri officials said that requiring death row inmates to specify how they were to be executed was contemplated by the Supreme Court in its 2008 decision in Baze v. Rees, which upheld Kentucky’s use of what was then the standard three-drug mixture used in most executions.
The state’s argument is plausible, partly because the decision is tough to understand. “Baze was so splintered that none of its seven opinions garnered more than three votes,” Professor Denno noted in an article called “Lethal Injection Chaos Post-Baze,” which is to be published in May in The Georgetown Law Journal.
The Missouri case is not the only one awaiting the Supreme Court’s attention. A second one, Sepulvado v. Jindal, No. 13-892, presents an even more straightforward question.
It was filed by Christopher Sepulvado, a Louisiana prisoner, and it asked the Supreme Court to decide whether due process “entitles a condemned inmate with timely notice of the method by which he will be executed.”
Louisiana responded that it had told Mr. Sepulvado all he needed to know. It was not sure what drugs it meant to use, it said, but it had supplied him with various possibilities, by name if not provenance.
But a fast-changing menu, Mr. Sepulvado’s lawyers say, is not a protocol.
It is true that prison officials face challenges. Drug shortages and boycotts have made it difficult to obtain lethal chemicals, and medical codes of ethics forbid help from those most competent to administer them.
I asked Professor Denno what states committed to the death penalty should do.
“We have a method,” she said. “It’s the firing squad. It’s the only method where we have people who are trained to kill that way.”