In state after state, defense lawyers contending that the execution method inflicts unnecessary pain complain that judges have denied them access to crucial information, including the identity of executioners and details about the drug cocktail used in the fatal injections.
State officials have successfully argued that releasing such information could compromise prison security and the safety of personnel. But lawyers for death row inmates say the restrictions have hampered their efforts to question not only the drugs, but how they are administered.
They say lethal injection is carried out by sloppy, untrained prison personnel unqualified to conduct the sophisticated medical procedure. During a 2006 execution in Florida, for example, Angel Nieves Diaz, 55, appeared to grimace in pain and struggle for breath for half an hour until a second round of lethal drugs was administered. Yet lawyers for death row inmates still were not allowed to question the execution team.
The nation's highest court will hear oral arguments in a Kentucky case. At issue is whether the execution method violates the constitutional ban on cruel and unusual punishment. The stakes are high: Executions across the country have been on a de facto moratorium since the Supreme Court agreed in September to consider the issue.
"What we know about how states and the federal government currently execute people in the United States is deeply troubling," Alison J. Nathan, a Fordham University law professor, wrote in an article recently published online in the University of Pennsylvania Law Review. "But the real danger of lethal injection as currently practiced lies in what we do not know."
It is not clear whether access to information will be discussed during the hearing. But legal experts said it could come up when justices question the lawyers.
When attorneys in some cases were allowed to examine lethal injection closely, they uncovered evidence that convinced federal judges in California, Missouri and Tennessee that the way lethal injection is carried out is unconstitutional.
In California, for example, a federal judge in December 2006 saidthere was "more than adequate" evidence that the state was violating the U.S. Constitution after hearing testimony that lethal injection procedures were performed in a dark, cramped room by men and women who knew little about the drugs they administered.
Medical experts in the case testified before U.S. District Judge Jeremy Fogel in San Jose that they could not rule out the possibility that one or more inmates had been conscious and experienced an excruciating sensation of drowning or strangulation before death.
Prosecutors across the nation have consistently maintained that the legal challenges are frivolous, a bid to stall executions. Executioners traditionally have not been named or subjected to questioning, they point out.
Clay Crenshaw, the assistant attorney general in charge of capital litigation in Alabama, said the reason for shielding executioners should be obvious. "You have a lot of nuts on the other side who, if they found out the names, would post them on anti-death penalty websites," he said.
But attorneys for the American Civil Liberties Union and the Rutherford Institute, a religious freedom organization, said the restrictions have choked off full investigation of a compelling public interest.
"Many states have cloaked their lethal injection protocols and executions in secrecy, insulating them from meaningful scrutiny," they said in their brief submitted to the Supreme Court in the Kentucky case in November.
In three dozen states, including California and Kentucky, a three-drug cocktail is administered intravenously by a team of prison employees. The first drug, sodium thiopental, is a fast-acting barbiturate that is supposed to render the inmate unconscious before the second two drugs are delivered: pancuronium bromide, which paralyzes the body, and potassium chloride, which causes cardiac arrest.
The thrust of the legal challenges is that executioners do not give enough of the first drug to protect inmates from severe pain, which is masked by the paralytic agent. Five prominent veterinarians filed a friend-of-the-court brief in the Kentucky case stating that the fatal concoction does not meet that state's minimum humane standards for putting down animals.
Execution details unclear
In the Kentucky case, David Barron of the state Department of Public Advocacy, who represents death row inmates Ralph Baze and Thomas Clyde Bowling Jr., was not allowed to question the execution team. Barron's copy of the state's written instructions for lethal injection executions was redacted. The unredacted version was submitted to the Supreme Court under seal.