Execution Secrecy Laws Struck Down in Oklahoma and Texas


A court on Wednesday struck down Oklahoma’s lethal injection secrecy law, ruling that it clearly violates “due process because access to the courts has been denied.”

Oklahoma is one of several states that refuse to disclose information about the lethal injection drugs and protocols they plan to use in executions. Two men whose executions are scheduled in April challenged the state’s secrecy law, which bans anyone from disclosing the source of the state’s execution drugs, even in court.

The court ruled that preventing people with execution dates from challenging the state’s execution procedures in court is unconstitutional. The decision “is a major outcome that should have a reverberating impact on other states that are facing similar kinds of transparency issues,” said Deborah W. Denno, a professor of law at Fordham University.

Death penalty states are finding it increasingly difficult to obtain the drugs used in lethal injections. Some have sought to buy or trade drugs with other states – with varying degrees of success. Alabama’s drug supply was seized by the DEA in 2011 after it was discovered that Alabama had illegally obtained the drugs from Tennessee. Recently, states have obtained drugs from largely unregulated compounding pharmacies.

Clayton Lockett and Charles Warner filed their lawsuit after botched executions in Oklahoma and Ohio raised concerns that if the drugs used to kill them are not pure, they could be conscious and suffer pain during the execution but be unable to communicate.

On January 16, Dennis McGuire struggled, made guttural noises, gasped for air and choked for about 10 minutes before being declared dead after Ohio subjected him to a never-before-used two-drug execution method.

Inmate Michael Wilson died at the Oklahoma State Penitentiary in January after a three-drug injection that started with pentobarbital. His final words were “I feel my whole body burning.”

Oklahoma announced after the lawsuit was filed that it was having trouble obtaining some lethal injection drugs. Last week it changed its protocols to allow five distinct methods of execution.

Jen Moreno, a staff attorney at U.C. Berkeley School of Law’s Death Penalty Clinic, said the Oklahoma court’s decision “shows there is a growing concern by courts that states are keeping information secret.” Indeed, a Texas court yesterday ordered that state’s corrections department to disclose its supplier of a new batch of execution drugs to attorneys for two men with upcoming execution dates.

The decisions from Oklahoma and Texas raise questions about whether similar secrecy legislation now being considered in Alabama would also be struck down as unconstitutional.

UPDATE: On April 2, the United States District Court for the Southern District of Texas stayed the scheduled executions of Tommy Sells and Ramiro Hernandez-Llanas until all information about the procurement of execution drugs, including information about the supplier of the drugs and the testing of the drugs is given to attorneys for Mr. Sells and Mr. Hernandez-Llanas.