The recent botched attempts at executing prisoners on death row has resulted in some confusion as to what to do next. The problem stems from the fact that the cocktail of drugs that had traditionally been used are no longer freely available, partly because the countries where they are produced have refused to allow them to be shipped to the US for use in executing people and partly because the drug companies that produce them are fearful of the bad publicity that would result if the public discovered that they are being used not to treat people but to kill them.
Some thirteen states have adopted the policy of trying to keep the whole process clothed in secrecy to get around these problems, while others are considering alternative methods such as firing squads. Louisiana is one of those states that recently considered passing such secrecy legislation.
The bill would have enshrouded Louisiana’s execution procedures in near-absolute secrecy. It provided that the “name, address, qualifications and other identifying information of any person or entity that manufactures, compounds, prescribes, dispenses, supplies, or administers the drugs or supplies utilized in an execution shall be confidential, shall not be subject to disclosure, and shall not be admissible as evidence or discoverable in any action of any kind”.
The proposed legislation undermined the role played by the local board of pharmacy in maintaining oversight on the drugs bought by the department of corrections. Under the terms of the bill the prison service would have been allowed to cross over into other states to buy lethal drugs from compounding pharmacies without needing to apply for a permit from the board.
An amendment to the Louisiana bill would have afforded confidentiality to “any person who participates in an execution or performs any ancillary function related to an execution and shall include information contained in any department records, including electronic records, that would identify any such person”. The clause was so widely cast that lawyers feared it would prevent the public knowing anything about an official inquiry into an execution that might be botched.
At the last minute, the sponsor of the bill withdrew it but the reasons are unclear. It would undoubtedly have face legal challenges on the grounds that even a death row inmate has some rights and having mysterious drugs injected into them would constitute cruel and unusual punishment, a violation of the Eighth Amendment, while media outlets have challenged the secrecy on First Amendment grounds and the public’s right to know.
The death penalty is an abomination and why people would go through such contortions to retain it is beyond me.