The First Amendment argument against lethal-injection secrecy laws

It's stronger than you might think

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. 

Despite concerns about quality control, or perhaps because of them, some states are shrouding in secrecy more pieces of their execution protocol—even arguing that the drug manufacturers themselves are part of the “execution team,” whose identities are routinely kept confidential. (Oklahoma, which has disclosed the drugs in its lethal-injection cocktail, is actually more forthcoming than some states.) Around the country, these secrecy practices are triggering legal challenges. In Louisiana, a federal court ordered the department of corrections to disclose what drugs would be used in a specific execution. In Georgia, the state Supreme Court is reviewing a law making information about lethal drug suppliers a “confidential state secret.” In Missouri, a federal court is hearing a challenge to a law that prohibits identifying members of the execution team. And in Oklahoma, judicial independence died a quick death (irony intended) when the state Supreme Court stayed the Lockett and Warner executions to review the state’s injection secrecy law, only to reverse course days later—after Fallin refused to honor the stay and a state lawmaker introduced impeachment proceedings against the justices who voted for it.

With a few partial exceptions, such as the Missouri and Georgia lawsuits, most of the news coverage and discussion about injection secrecy laws have focused on Eighth Amendment and due process implications, with death-row inmates arguing that secrecy prevents them from investigating whether certain drugs or improper dosages amount to cruel and unusual punishment, and prison officials arguing that secrecy is necessary to protect execution team members from harassment and violence.

Those are unquestionably important concerns, and I would argue that the constitutional questions at play here are even broader: The press and public may well have a qualified right of access to information about lethal injection drugs protected by the First Amendment. Indeed, such a right assumes a special importance here because of the relationship between the First and Eighth Amendments—the First is essential to realizing the safeguards of the Eighth’s prohibition on cruel and unusual punishment. More on that below.

The First Amendment angle

To be clear, this is not about the propriety of capital punishment or the terrible offenses Lockett and Warner committed, nor is this about their victims, who have been largely and tragically lost in the coverage of Lockett’s botched execution. This is about whether states may withhold from the public certain information about how they kill people, an issue that Nathaniel Crider, executive managing editor of the Columbia Journal of Law & Social Problems, addressed in a forthcoming scholarly article, which he shared with me. The basic argument—stretching some existing First Amendment principles without breaking them—weaves together Supreme Court precedents with their potential application to injection secrecy regulations. Below are bullet points summarizing the key precedents, and the next subsection covers their application.

  • First, the US Supreme Court traditionally interpreted the First Amendment to create a negative right that prevents the government from restricting protected speech. However, since the 1940s, a body of Supreme Court case law has emerged focusing on the audience’s right to receive information. In some cases, the Court has held, that right requires the government to provide the press and public access to information uniquely in its possession. This implies an affirmative government act to facilitate speech rather than merely to lift barriers to speech.
  • Second, the Supreme Court has ruled that the public and press have a First Amendment right of access to criminal trials absent a compelling state interest and narrowly tailored means to achieve that interest—a right recognized in Richmond Newspapers Inc. v. Virginia and Globe Newspaper Co. v. Superior Court. The justices extended that right to jury selection hearings in Press-Enterprise Co. v. Superior Court of California and to preliminary hearings in Press-Enterprise Co. v. Superior Court, noting that to claim the right you must demonstrate that the “place and process have historically been open to the press and general public” and that the desired access “plays a significant positive role in the functioning of the particular process in question.”
  • Third, although the right of access to various criminal proceedings is well established, prison officials carry out executions at state correctional facilities—and such facilities are not public places with a tradition of openness. For those reasons, the right of access to correctional facilities is not as robust. In Pell v. Procunier, the Supreme Court upheld a prison regulation that stated, “Press and other media interviews with specific individual inmates will not be permitted.” The justices noted that the press didn’t have a right of access to prisons beyond that of the public, and reasoned that the regulation was okay because of the state’s compelling interest in secure prisons and the existence of other “reasonable and effective means of communication,” such as writing letters.
  • Further, the Supreme Court in Turner v. Safley upheld prison regulations allowing officials to bar inmates at one prison from corresponding with inmates at another. The justices held that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” They said several factors are relevant to determine a regulation’s reasonableness: whether there is a “valid, rational connection” between the regulation and the government’s stated interest, whether other means of exercising the right exist, and how accommodating the right will impact the prison population and staff.
  • Finally, the Supreme Court ruled in the 2008 case Baze v. Rees, the most recent major statement on the death penalty, that an execution method that “creates a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death” violates the Eighth Amendment. To determine whether an execution method creates such a risk, the Court considers the “evolving standards of decency that mark the progress of a maturing society.”

With that in mind, 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 Court’s analysis of “evolving standards of decency.” To conduct the actual analysis, a party arguing for that right needs to establish (1) that the place and process historically have been open to the press and public, and (2) that access plays a significant positive role in the functioning of the process. If those elements can be established, it’s necessary to consider whether the right can be satisfied by reasonable alternative means, and whether the right is absolute or qualified.

Recognizing the right

Correctional facilities haven’t traditionally been open to the press and public, but executions are a sort of proceeding in the presumptively open criminal justice system, the closing chapter of a long book of trials and appeals. Historically, executions themselves were open—the better to demonstrate the state’s power—and conducted in ways that left little doubt of the exact mode of death: hanging, firing squad, beheading by guillotine, and so on. The actual process of killing a convict remains open to media observers today. And while states have long shielded the identities of executioners, I’m aware of no practices or policies that shielded rope makers, bullet makers, or blade makers.

There’s also no doubt that access plays a significant positive role in the functioning of the execution process. The shift to compounding pharmacies—and the flawed executions that have followed—has raised legitimate questions about the integrity and effectiveness of new and largely untested drug combinations. The press and public can’t evaluate whether the state’s execution method “creates a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death” if they don’t know whether the drug’s raw ingredients come from a reputable producer or whether the finished product is pure and sterile. As the late Thurgood Marshall once said, “[T]he opinions of an informed public … differ significantly from those of a public unaware of the consequences of the effects of the death penalty.”

Moreover, as the Court said in Baze, to determine whether an execution method violates the Eighth Amendment, the justices consider the “evolving standards of decency that mark the progress of a maturing society.” Those standards don’t exist in a vacuum. They reflect society’s value judgments based on available information—here, what society knows (or doesn’t know) about lethal injection protocols. For those standards to be meaningful, the public must be armed with full and reliable information—most likely reported by the press—because that information shapes the value judgments that shape the standards. Thus, without a right of access to information about execution protocols, the dictates of the Eighth Amendment cannot be fulfilled.

Now, although a First Amendment right of access can be recognized here, it is qualified. It can be trumped by a compelling state interest and narrowly tailored means to achieve that interest. In the corrections center context, the question is whether the regulation is reasonably related to legitimate penological interests. And applied to injection secrecy regulations, the question is whether making confidential the drugs and their producers, suppliers, compounders, etc., is reasonably related to the government’s generally stated interest in protecting execution team members from harm and harassment (as a threshold matter, though, it’s debatable whether compounders are appropriately seen as execution team members).

Analyzing a state interest and the means to achieve it requires a case-by-case review of specific practices or the language and legislative history of individual bills. It’s plausible that the government could demonstrate that the purpose of injection secrecy regulation is to protect manufacturers from credible threats of harm. But it’s also plausible that a party challenging the regulations could demonstrate that the state was not exclusively interested in such protection—that the state also intended to incentivize lethal drug producers, suppliers, compounders, etc., to aid in executions by promising not to disclose their identities or by shielding them from liability for defective drugs. Notably, even if the state demonstrated a legitimate penological interest, a challenger could argue that the secrecy regulation is not reasonably related to the interest because it’s broader than necessary. The outcome would depend on the practice or law at issue.

Finally, there’s the question of whether a right of access to information about legal injection drugs could be satisfied by reasonable alternative means. This also requires case-by-case analysis—but in general injection secrecy regulations, by definition, don’t provide such means. Their whole design is to conceal the participants in the execution process. And yet viable, less-restrictive alternatives are easily conceivable. For example, if the state asserted a need to protect lethal drug producers, suppliers, compounders, etc., from harassment in a particular case, an in-camera review of the sensitive information—and, if necessary, a redaction—would be more reasonable than a blanket assertion of confidentiality.

Above all, even if a state’s capital punishment system is less than perfect for the circumstances, at least it can be transparent. As Megan McCracken and Jennifer Moreno, staff lawyers in the Death Penalty Clinic at Berkeley, wrote in April for The New York Times, “If prison officials conceal crucial information from judges, lawyers and the public, we have only their word that the drugs will cause death in a manner that complies with the Constitution. Clearly, we can’t leave that to trust.” No doubt, leaving things to trust is something the press and public in a democracy cannot afford to do—and no government regulation should put the press and public in that position, especially where the state’s “unique capacity to employ legitimized violence” is at issue. 

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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 for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters. Tags: , , ,