Opinion

A shroud of secrecy around executions: Is this the American way?

No wonder states want to conduct executions under as much secrecy as they can - they keep screwing them up

So what should a state do when its executions run into trouble? If you’re Ohio, apparently you try to cloak the process in secrecy.

Ohio – like Missouri, Oklahoma and a few other states – has had trouble killing people. Among the issues: It is getting harder and harder to procure the drugs used in executions because the manufacturers – many European-based – refuse to sell products that were designed to help the sick to prisons that they know will use them in executions.

Other death penalty states have already enacted laws that make it illegal to identify the source of execution drugs, as well as the identities of those involved in the execution itself. Several death row inmates have protested, arguing that if the state that wants to kill them keeps secret the drugs and sources it will use, then it’s impossible to determine whether the execution would violate the 8th Amendment proscription against cruel and unusual punishment.

But a law working its way through the Ohio legislature goes a step further and voids provisions in contracts between domestic buyers and European manufacturers that limit the ultimate destination and use of the drugs, and provides cover from state medical board disciplinary action for medical personnel who back the state’s execution protocol. Groups such as the American Civil Liberties Union and the Society of Professional Journalists have objected, and for good reason. Government actions – particularly the abhorrent practice of killing its own citizens – should be as transparent as possible. Secret executions are the stuff of totalitarian regimes, not modern democracies.

Ohio's executions are already on hold until January under a federal court order as the state tries to figure out how to revise its protocol to avoid a repeat of the anguished death of Dennis McGuire early in the year. Oklahoma also botched the execution of Clayton Lockett, who writhed in pain before the procedure was stopped, though enough of the drugs were injected to eventually kill him (state officials initially said he died of a heart attack). The governor has since declared a moratorium until the state can establish a better protocol. And neither of those experiences affected Arizona's execution of Joseph Rudolph Wood III, which didn't go as planned, either: It took 15 separate injections.

No wonder the states want to conduct these executions under as much secrecy as they can.

Missouri, which is pressing on with a record pace of executions this year, even as the national pace has declined, is being sued by news organizations and the ACLU over its secrecy. Oklahoma is being sued as well after it pulled a curtain to hide the execution chamber from witnesses as Lockett writhed in pain. 

As if these maneuvers aren't absurd enough, Texas intends on Dec. 3 to kill a paranoid schizophrenic man who thinks his looming execution is part of a Satanic conspiracy to preclude him from preaching the gospel. (God, he believes, has already forgiven him for the murders he committed.) The state is moving forward despite wide condemnations – including from the European Union – and appeals for clemency.

And then there's the long string of cases the new Marshall Project site wrote about in which condemned prisoners have lost shots at habeas corpus apeals because their lawyers missed filing deadlines.

Meanwhile, Missouri could be about to notch another execution. The 8th Circuit Court of Appeals has rejected a motion for a stay of execution for Leon Taylor, set to die early Wednesday barring intervention by the Supreme Court. The appellate ruling was not unanimous, and the dissent by Judge Kermit Bye is worth digesting.

"It is the role of the courts – not Missouri – to review the constitutionality of Missouri's execution protocol. In light of Missouri's documented determination to execute its death row inmates, sometimes before federal courts complete their review of the constitutionality of Missouri's intended actions... this court should be skeptical of Missouri's desire and ability, or lack thereof, to be critical and objective in considering the source and efficacy of its compounded pentobarbital. Thus, as I have stated before, we should review Missouri's assurances with 'intense judicial scrutiny.'"

Citizens should view the entire sick process with deep skepticism about its reliability, its arbitrary applications, and whether justice can ever be served through the killing of another human being. This system is a stain on our national soul.

Follow Scott Martelle on Twitter @smartelle.

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