How the First Amendment challenge to lethal-injection secrecy came together

Media organizations take the transparency fight to court in Missouri

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-LeaderThe 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.

That same day, in yet another coincidence, Jonathan Peters published a piece for CJR outlining “The First Amendment argument against lethal-injection secrecy laws.” Peters, drawing on the work of Nathaniel Crider of the Columbia Journal of Law & Social Problems, suggested that “a First Amendment right of access to information about lethal injection drugs can be recognized by focusing on the audience’s right to receive information, and acknowledging the importance of that information to the [Supreme] Court’s analysis of ‘evolving standards of decency’” regarding the Eighth Amendment’s ban on “cruel and unusual punishment.” This view of the First Amendment, which Peters argues has been bolstered in Supreme Court case law, suggests that the public has an affirmative right to some kinds of information that are vital to a functioning democracy—such as the means by which convicts are put to death—rather than merely a negative right against barriers to speech.

Missouri is already facing a more traditional First Amendment challenge from the state’s ACLU chapter, which since the fall has been barred from distributing information that it obtained about drug suppliers under an earlier, less-secretive regime. In April, a federal judge denied the state’s motion to dismiss that suit.

Schulz told me that the coalition’s brief had already been written by the time he saw the CJR story, but the First Amendment argument in the suit filed Thursday dovetails substantially with the one outlined by Peters.

“The Constitution … compels access to historically available information about the type and source of drugs used in lethal injection executions because disclosure promotes the functioning of the process itself and is essential for democracy to function,” the plaintiffs argue. “The public cannot meaningfully debate the propriety of lethal injection executions if it is denied access to this essential information about how individuals are being put to death by the State.”

The brief goes on to cite the Lockett case in Oklahoma as proof of “the importance of disclosure of this information to public confidence in a State’s imposition of the ultimate punishment.”

Whether the court sees it that way is another matter. As Peters noted in his analysis, for instance, “It’s plausible that the government could demonstrate that the purpose of injection secrecy regulation is to protect manufacturers from credible threats of harm.” Missouri is likely to make that very argument—as Texas has done, with some success. Despite notable dissents from federal judges in Missouri, so far the courts have turned a deaf ear to arguments against the state’s secrecy regarding execution drugs.

But if either of these new lawsuits succeeds in its claims, it could lift the veil that hangs over death-penalty practices in Missouri—where convicted murderer Russell Bucklew awaits execution next week and dozens of others remain on death row. And if the Guardian/AP suit succeeds on the merits of its constitutional claims, it could set a precedent to lift the veil in other states as well.

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Deron Lee is CJR's correspondent for Iowa, Missouri, Kansas, and Nebraska. A writer and copy editor who has spent nine years with the National Journal Group, he has also contributed to The Hotline and the Lawrence Journal-World. He lives in the Kansas City area. Follow him on Twitter at @deron_lee. Tags: , , , , , , , ,