The U.S. Supreme Court heard arguments in Glossip v. Gross today. Many legal experts are now taking a look at Oklahoma's challenged lethal injection protocol, which uses the anti-anxiety medication midazolam associated with several botched executions. One legal scholar, Eric Berger, an associate Professor of Law at the University of Nebraska, has a piece today on CNN.com, looking at the role of state secrecy in Oklahoma's decision to use the drug.
Berger argues that Oklahoma's risky use of midazolam grew from a culture of state secrecy around lethal injection. In fact, argues, Professor Berger, the very use of a paralytic agent to disguise prisoners' true reactions to lethal injection drugs is part of the culture of secrecy:
"Oklahoma and many other states' use of a paralytic is symptomatic of a broader, national problem: States are able to hide crucial details about their lethal injection procedures before, during, and after executions. States often refuse to disclose the training and qualifications of execution team members, the chemical properties of the drugs they use and the precise steps they take to carry out executions.
States also often refuse to explain how and why they designed their own protocols. Given this haphazard, unstudied approach to lethal injection, the lack of transparency can help them obscure their own incompetence. For example, when Oklahoma selected midazolam, it did so hastily so it could continue executions without delay. Never did the state conduct a meaningful, transparent analysis of the drug's relative merits."Unsurprisingly, these sketchy, secretive procedures create serious risks."
Oklahoma's badly botched execution of Clayton Lockett in April 2014, which was the state's first use of midazolam, represented a failed execution process marked by state secrecy at every level. Berger notes that South Dakota, Arizona, and Ohio too have conducted problematic executions in recent years.
Arguing that state secrecy itself can be a threat to protection under the Eighth Amendment, Berger concludes,
"the precise contours of "[the] Eighth amendment standard are largely irrelevant when " states " conceal their procedures details. Indeed, the costs of lethal injection secrecy are far reaching. Secrecy, quite obviously, deprives inmates of their Eighth Amendment rights. States designing execution protocols without external oversight also often take questionable shortcuts that heighten the risk of pain"
Berger makes a compelling argument that Oklahoma's flawed lethal injection drug protocol is the product of a culture of secrecy. It will be interesting to see if the Court agrees.
