From 1995 to 2006, when the state of Missouri executed a convict by lethal injection, the process was overseen by a physician named Alan Doerhoff. Doerhoff was dyslexic, and he acknowledged in a deposition that he sometimes confused the names of drugs and that his injection protocols were not written down. He also had been sued for malpractice more than 20 times, by his own account; had been reprimanded by the state board of medicine and denied visiting privileges at two hospitals; and had made false statements in at least two court cases about his history of mistakes.
Those facts, about the man charged with overseeing the integrity of the gravest action a state can take against one of its citizens, might have been seen as matters of public interest. But the state kept Doerhoff’s name a secret. He was even allowed to give that deposition testimony, in June 2006—which was so alarming it led a federal judge to impose a moratorium on executions in the state—under protection of anonymity.
His identity became public less than two months later, when it was revealed in an investigation by Jeremy Kohler of the St. Louis Post-Dispatch, who had started digging after seeing Doerhoff’s testimony. The article led the state Department of Corrections to find a new doctor to oversee executions. The response of the state Legislature was different: It passed a law the following year that bars disclosure, without the permission of the Department of Corrections, of “the identity of a current or former member of an execution team.” Violators could be sued by the people they identified and would be exposed to civil penalties, including punitive damages.
“Their answer to the public finding out they had an incompetent doctor was making it impossible to find out who the doctor is,” says Tony Rothert, legal director at ACLU of Missouri, which has fought the state in numerous death-penalty cases.
Executions have since resumed in Missouri; there have been four in the last four months alone. But the prohibition against identifying members of the “execution team” remains. And last fall, the ban was broadened to include even the pharmacies that now compound lethal drugs for the state—a move that challenges news organizations’ freedom to report on the state’s brewing death-penalty debate and has reportedly stopped the ACLU and lawyers for condemned inmates from sharing information with journalists. The civil-liberties group has filed a lawsuit against the state, arguing that the application of the law is an unconstitutional violation of the First Amendment.
The legal challenge puts Missouri at the forefront of a nationwide battle over transparency and secrecy in capital punishment, in which states, responding to gains made by death-penalty opponents, have increasingly moved to conceal execution protocols—or the identities of people who help in any way to carry them out—from public view. The trend has frustrated death-penalty opponents and lawyers for convicts sentenced to death. It has also raised alarm among champions of free speech.
“These laws are unconstitutional, even immoral,” Andrew Cohen, a legal journalist and fellow at the Brennan Center for Justice who has written on this issue for CJR, told me in an email, “because they seek to hide from the American people material information about the means and manner of some of the most controversial aspects of capital punishment…. All of this secrecy is unjustified and inconsistent with the heart of the First Amendment.”
A few journalists in Missouri have challenged the restrictions by publishing the name of a compounding pharmacy that, based on their reporting, they believed was providing lethal drugs to the state. “At its core, this is not a death-penalty story,” one of those reporters, St. Louis Public Radio’s Chris McDaniel, said in a recent interview. “It’s a story about government secrecy.”
‘If people could be identified, they wouldn’t want to do it.’
The current conflict in Missouri began in earnest last fall, when the ACLU filed suit under the state’s public records law to get information about the Department of Corrections’ supply of the drug propofol, an anesthetic used as part of the lethal-injection cocktail. The records showed that the state’s supplies came from manufacturers who did not want their drugs used in executions—and after the ACLU posted the records online on Oct. 8, sparking a wave of press coverage, Missouri was compelled to return them.