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In Oklahoma and Texas, the condemned can know exactly what will kill them

In Oklahoma and Texas, the condemned can know exactly what will kill them
The Texas execution chamber; a judge there and in Oklahoma ruled that states can't keep secret the sources of their execution drugs. (Pat Sullivan / Associated Press)

It's not often these days that we see some sanity in death-penalty cases, but judges in Oklahoma and Texas ruled Wednesday and Thursday that condemned prisoners in those states have a right to know what exactly they are going to be killed with. This will likely inflame death-penalty advocates, but these are good, constitutional decisions.

The issue centers on the source of drugs to be used in executions. As the United States becomes more isolated from the world in its embrace of the death penalty, it has become harder for states to procure the drugs used in the different combinations to kill people. In fact, the European Union has banned pharmaceutical companies under its jurisdiction from exporting drugs to places that will use them for capital punishment. So the sources of the most commonly used drugs have dried up, and state executioners are scrambling to find fresh supplies.

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Among the favorites: compounding pharmacies that customize drugs for specific uses. But fewer and fewer such businesses want to be identified as the suppliers, which has led Oklahoma, Texas and a handful of other states to adopt laws barring public disclosure of the sources of the drugs.

That also means the public has no way of knowing how the drugs are compounded, whether they have been tested for effectiveness and pain creation (there have been some issues) and, in the case of the condemned, whether the method of execution violates the 8th Amendment's ban on cruel and unusual punishment. Shutting off access to that information denies prisoners the right to due process by denying them, in practice, access to court review, an analysis the courts have agreed with.

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I've written before, as has The Times' editorial page, that the death penalty is fraught with abuse, expensive and morally indefensible. Yet as a nation we cling to it. It's astounding that people who think the government pretty much does everything wrong can think that somehow it can get the death penalty right. The growing volume of now-recognized wrongful convictions should give pause to anyone who cares about basic civil liberties. Yes, bad and vicious people get convicted of heinous crimes, and they should be locked away until they die of natural causes, deprived of freedom while protecting society from future crimes. But responding to personal acts of violence with a state act of violence is the wrong answer. Especially when the state has been so wrong so many times.

But we're stuck with that barbaric system. In Oklahoma and Texas, at least, a couple of judges acknowledge that the condemned do have constitutionally protected rights. Now if we could only get the courts to recognize that people — even criminals — have a right not be killed by their own government.

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Follow Scott Martelle on Twitter @smartelle

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