PRAIRIE VILLAGE, KS — Missouri’s death-penalty regime took two shots across the bow on Thursday, as dual lawsuits were filed in state court challenging the secrecy of the state’s lethal-injection protocols.
The first suit was filed by a media coalition including The Guardian, The Associated Press, and Missouri’s three highest-circulation-newspapers: the St. Louis Post-Dispatch, The Kansas City Star, and the Springfield News-Leader. The second suit was filed by reporter Chris McDaniel of St. Louis Public Radio along with the Reporters Committee for Freedom of the Press and the ACLU of Missouri. Representatives of both groups said they were unaware of the other effort and that the timing was a coincidence.
Both lawsuits stem from efforts by reporters to obtain information from the state Department of Corrections about the provenance of drugs that are being used in executions. Both argue that the department is violating the state’s “Sunshine Law” by rebuking the plaintiffs’ public-records requests.
The Guardian/AP suit goes one step further, however, arguing that the department’s actions violate the First Amendment. According to The Guardian’s article on the lawsuit, “It is believed to be the first time that the first amendment right of access has been used to challenge secrecy in the application of the death penalty.”
“We think we have a meritorious argument both under state law and the US Constitution that the public has a right to know this information,” said David Schulz of Yale Law School’s Media Freedom and Information Access Clinic, who is leading the Guardian/AP effort. The Department of Corrections did not respond to a request for comment on the lawsuits.
The botched execution of Clayton Lockett in Oklahoma on April 29 created a national furor over secrecy in death-penalty protocols, but the controversy had been in play long before that. As major drug manufacturers have moved to prevent their products from being used in executions, in part due to pressure from the European Union, many states have come to rely on largely-unregulated domestic “compounding pharmacies” to supply the drugs—often taking controversial legal measures to protect the anonymity of those suppliers. In Missouri, the Department of Corrections late last year began shielding its drug suppliers by reinterpreting an existing statute that protects the identities of execution team members.
We reported in March on efforts by McDaniel of St. Louis Public Radio and Steve Vockrodt of The Pitch, a Kansas City alt-weekly, to uncover and reveal the name of the Oklahoma pharmacy where the state was allegedly obtaining its execution drugs. After that pharmacy was publicly identified, however, the state announced that it had found another, secret vendor and would continue on its recent pace of one execution per month.
The Guardian has been closely following the death-penalty secrecy story in Missouri and other states, and in March, the British newspaper’s US division contacted Schulz to ask for help in breaking the legal blockade. A few weeks later, Schulz said, “AP approached us separately” on the same issue, and “we decided to join forces.”
Why did the group decide to focus on Missouri? Schulz would not discuss their strategic thinking in detail, but he noted that “there are only a handful of states that have taken a hard line” on continuing to conduct executions shrouded in secrecy.
“Missouri is one of the states that has continued to go forward with executions,” he said, not ruling out the possibility that the coalition’s effort might spread to other states. “It seemed like the place to start.”
Once the group zeroed in on the Show-Me State, the AP recruited member papers the Post-Dispatch, the Star and the News-Leader to the cause. Legal services are being provided pro bono by the Yale clinic, as well as by media attorney Bernard Rhodes of Lathrop & Gage in Kansas City, MO, who is representing the in-state papers.
“This is an international, national, and local coalition of organizations who are all in it as a group,” Rhodes told me.
On April 15, The Guardian filed a public-records request with the Missouri Department of Corrections asking for the names and composition of all drugs being used for executions in the state, as well as the sources of the drugs, among other details. Ten days later, the department responded, declining to provide the requested information and claiming that it was shielded under Missouri statute.
A few days after that, when the botched Lockett execution made headlines nationwide, the coalition decided to try again. In light of the Lockett story, Rhodes told me, “we were curious to see if the state had changed its position.”
On May 2, the AP submitted another records request identical to that made by The Guardian; more identical requests came from the Post-Dispatch, the Star and the News-Leader on May 9. But the state’s position was unchanged, and all of those requests were denied on May 12.