The First Amendment vs. death penalty secrecy laws

In Missouri, it's against the law to name pharmacies that produce drugs for lethal injections. Two news organizations did so anyway. What happens next?

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.

The state’s next step was twofold: It found a compounding pharmacy that would produce pentobarbital, an alternative drug for lethal injections, and it changed its execution protocol to include as part of the “execution team” people who “prescribe, compound, prepare, or otherwise supply” lethal-injection drugs. That gave those people the right to sue anyone who publicly identified them without permission from state officials. The ACLU took the records down from its website, and says it has had to refuse requests from two media organizations to share the documents. The organization’s suit claiming the law violates its First Amendment rights is now pending in federal court.

Missouri is one of several states that have turned to lightly-regulated compounding pharmacies and sometimes unorthodox drug combinations for lethal injections in recent years, after the European Union in 2011 imposed an export ban on drugs that were being used in U.S. executions. The shift has led to questions about the integrity and humaneness of the process. In an execution that took place in Ohio in January using an untested drug combination, a convict was reportedly gasping for breath for as long as 14 minutes before succumbing. That same month, an Oklahoma convict was executed with drugs of undisclosed provenance. His last words were, “I feel my whole body burning.”

Missouri is also one of several states that have extended a shroud of secrecy further around their execution apparatus. Lawmakers or corrections officials in at least 10 states have moved to conceal information about their capital punishment system, according to an analysis by the Death Penalty Clinic at Berkeley Law. In Georgia, a challenge to the state’s lethal-injection secrecy law, which bars even judges from access to information, is pending before that state’s supreme court.

Lawyers for condemned prisoners argue that the bans prevent them from investigating whether their clients may suffer from contaminated drugs or improper dosages in ways that amount to cruel and unusual punishment. States, in turn, argue they are necessary to protect execution team members from harassment and even violence, and to allow the capital punishment system to function.

The concern about violent backlash is “spurious at best,” argues Kohler of the Post-Dispatch. “The real reason they don’t want people to identify members of the execution team is that if people could be identified, they wouldn’t want to do it.”

News organizations challenge secrecy law

In January, two Missouri news organizations did identify by name a compounding pharmacy that, based on their reporting, they believed was very likely providing the state’s death-penalty drugs: the Apothecary Shoppe in Tulsa, OK. It was not a move they took lightly.

“Before publication we did consult an attorney about how we should handle it,” said Steve Vockrodt of The Pitch, Kansas City’s alt-weekly. His Jan. 21 story, which critiqued the state’s capital punishment system on several fronts, detailed the research and deductive reasoning he had used to come to a conclusion about the pharmacy’s likely identity—not unlike the way Kohler identified Doerhoff nearly a decade earlier. The Pitch had to grapple with the possibility of opening itself up to penalties if it went ahead, Vockrodt said. But, he added, “Any time the government insists on secrecy, it should raise the hackles of the media.”

The calculation was similar at St. Louis Public Radio. “It was something that we really had to consider with our lawyer,” said McDaniel, the reporter, who pointed to the same pharmacy as the likely source in a story a few days later as part of an exhaustive, ongoing investigative series on death penalty practices in Missouri.

News organizations are “taking a risk of being sued when they do that under Missouri law,” said the ACLU’s Rothert. Ultimately, McDaniel said, he and his editors opted to publish the pharmacy’s name because “we are a journalistic outlet and our focus is on what the public has a right to know.”

CJR reached out to the Apothecary Shoppe Thursday afternoon to ask for comment on the press reports, whether the pharmacy had experienced harassment, and whether it was contemplating legal action. A representative said the pharmacy could not provide any new comment for legal reasons but would send a release. At press time Friday morning, no statement had arrived.

The Post-Dispatch, for its part, made a different decision. Even after naming Doerhoff, the paper had challenged the 2007 law by identifying a nurse with a troubled legal history on the execution team. But Kohler, who has delivered strong reporting on the legal proceedings, said he and his editors decided in this case not to publish the name of the pharmacy.

“I didn’t want to name them just to name them,” he said, because “it didn’t seem to raise the same alarming issues” as the case of the disgraced Doerhoff. Kohler emphasized, though, that he is “not criticizing” what other reporters did in naming the Oklahoma pharmacy.

Kohler appears to be correct that being publicly associated with lethal injections makes people less willing to participate. After the Apothecary Shoppe was named in reports by Vockrodt and McDaniel—and sued by attorneys for Michael Taylor, the next convict facing lethal injection in Missouri—the pharmacy announced it would not provide drugs for Taylor’s execution. According to an Associated Press report, the pharmacy did not acknowledge that it had provided drugs for three prior executions; it argued that it could not make such a disclosure, because of the state law.

A new, secret supplier

If Taylor’s attorneys expected that the identification of the pharmacy would stop the execution, their hopes were unfounded. A week before the scheduled Feb. 26 execution, state officials announced that they had found a new, secret supplier.

The state had time on its side. In that window there was little time for journalists, attorneys, or anyone else to uncover the identity of the new pharmacy.

“The Dec. 31 story [which narrowed the state’s pharmacy to three possibilities] took close to two and a half months, with two reporters working on it almost exclusively,” McDaniel recalls. “That’s something that takes a lot of time.”

“I think everybody was kind of outfoxed,” says Vockrodt.

Last week Taylor, a convicted killer and rapist whose appeal had led to the state’s death-penalty moratorium back in 2006, was put to death using pentobarbital produced by the new supplier, who remains anonymous. Press witnesses reported no abnormalities, though the state offered no lab report on the purity and potency of the drug, as it had in previous executions.

A federal appellate court denied Taylor’s last-minute petition for a rehearing, though Judge Kermit Bye, a frequent critic of the state’s approach to executions—he had derided the state in December for “using shadow pharmacies hidden behind the hangman’s hood”— issued a stinging dissent. “From the absolute dearth of information Missouri has disclosed to this court, the ‘pharmacy’ on which Missouri relies could be nothing more than a high school chemistry class,” he wrote.

Bye’s dissent received the support of three Supreme Court Justices. But his outrage, some observers believe, has not fully caught on in the journalistic community. In a post on the Brennan Center site a few days before Taylor’s execution, Andrew Cohen challenged organizations like the Missouri Press Association and Associated Press to be more aggressive in fighting the state.

“I’m surprised that there doesn’t seem to be more of an objection to this,” Vockrodt, the alt-weekly reporter, said when approached by CJR. “It’s the first time I’ve been asked about it by someone outside our organization.”

Jean Maneke, counsel for the Missouri Press Association, said that the MPA does not itself file transparency lawsuits, although it does lobby for government openness in the Legislature and can file amicus briefs in support of member news organizations. If a news organization did get sued under the law and have to defend itself, she said, “I am certain the MPA would be on board as an amicus in that lawsuit.”

For the moment, that hasn’t happened. Beyond the state’s refusal to disclose information, the clearest burden on reporters has been in potential sources’ inability to share information they do obtain, and in the time and resources spent reviewing the law.

But Rothert, of the ACLU, wonders whether news organizations have been influenced by the self-censorship that affected his organization.

“I talk to a lot of reporters in Missouri,” he said. “And they’re very good, and they’re doing good work on covering this, but they’re aware of the law…. Certainly it makes reporters more cautious about reporting on this.”

The state’s next execution, of convicted killer Jeffrey Ferguson, is scheduled for March 26. At some point, the court will rule on the ACLU’s challenge. For now, a victim’s family waits and hopes for closure and justice under the state’s laws. State corrections officials hope to avoid an embarrassment like the one in Ohio in January. And neither reporters nor Ferguson’s attorneys are allowed access to information about the production of the drug that will put him to death.

“Everybody is losing,” McDaniel says. “There are no winners.”

Has America ever needed a media watchdog more than now? Help us by joining CJR today.

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: , , ,