Update, 5/15: A media consortium consisting of The Associated Press, Guardian US, the St. Louis Post-Dispatch, The Kansas City Star, and the Springfield News-Leader has filed a lawsuit challenging Missouri’s lethal-injection secrecy as a violation of the state’s Sunshine Law and the First and Fourteenth Amendments. Guardian story, which says the suit “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,” here. Copy of the suit here. Also today, a separate legal challenge to Missouri’s practices was filed by Chris McDaniel of St. Louis Public Radio, the Reporters Committee for Freedom of the Press, and the ACLU of Missouri, on the grounds that corrections officials are violating the state’s Sunshine Law. St. Louis Public Radio story here.

Clayton Lockett didn’t do what he was supposed to do: die quickly and quietly.

Lockett was the Oklahoma death-row inmate scheduled to be executed April 29. But when the execution began, something went wrong: After being declared unconscious, Lockett moved his head from side to side, lifted his head and feet off the gurney, tried to say something, groaned and mumbled while writhing, opened his eyes, and attempted to get up, all before dying of an apparent heart attack less than 30 minutes later, in the execution chamber.

Lockett’s gruesome death occurred in the full glare of a media spotlight—in part because of concerns that Oklahoma had impeded oversight and threatened certain constitutional rights by shrouding in secrecy, like an increasing number of states, key parts of its capital punishment system.

The spectacle prompted Oklahoma Gov. Mary Fallin to postpone a second execution scheduled for the same night, that of Charles Warner, who subsequently asked the Oklahoma Court of Criminal Appeals to put off his execution “until evidence can be provided … [that] Oklahoma can carry out a humane, constitutional execution.” The state agreed last week to a six-month delay. Meanwhile, the state public safety commissioner is conducting an (independent?) investigation of Lockett’s cause of death, focusing on whether the execution team complied with protocols and how to improve those protocols.

While Oklahoma reviews its practices, I’ll offer a suggestion to the Sooner State: Be less secretive about how you kill people. The state has been unwilling to answer even basic questions about the source of the lethal-injection cocktail used in Lockett’s execution. But when the government is mum about how it exercises what the legal scholar Vincent Blasi called its “unique capacity to employ legitimized violence,” it’s not only a shameful failure of government transparency—it may actually violate the First Amendment.

Compounding secrecy

It’s not yet clear what caused things to go wrong: whether it was the drugs administered to Lockett, or, as the state’s director of corrections claimed, the way they were delivered. [Update: Cary Aspinwall and Ziva Branstetter write in the Tulsa World that the problems arose “because a failed IV line started by a medical professional whose credentials remain secret under state law slowly leaked a drug combination that experts had warned could potentially be inhumane.”] What is clear is that, because Oklahoma refuses to disclose where its drugs came from, no outside party can examine the record of the drug supplier. The state is one of at least 10 where, as CJR’s Deron Lee reported in March, lawmakers or prison officials have made confidential the source of lethal injection drugs; and/or the identity of the producer, pharmacists, and prescriber; and/or the execution team’s professional qualifications.

Much of this secrecy stems from prison officials’ increasingly desperate attempts in recent years to procure lethal-injection drugs after major manufacturers, under pressure from the European Union, took steps to prevent their products from being used for capital punishment. That development led a number of states, including Oklahoma, to turn to compounding pharmacies in the United States—lightly regulated labs that mix drugs to order whose quality control is a major concern. A contaminated steroid produced by a compounding pharmacy caused a fungal meningitis outbreak that resulted in 64 deaths in 2012. And in the last six months, at their respective executions, an Ohio man gasped for more than 10 minutes and another Oklahoma convict said, “I feel my whole body burning,” after being injected with compounded drugs. 

Jonathan Peters is CJR's press freedom correspondent. An attorney, he is an assistant professor of journalism at the University of Kansas, where he teaches and researches media law and policy, with an affiliate research position exploring big data and Internet governance in the KU Information & Telecommunication Technology Center. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written on legal issues for Esquire, The Atlantic, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.