07/18/2013 03:30 pm ET | Updated Sep 17, 2013

Warren Lee Hill and the Ghosts of Death Penalty Past, Present and Future

Warren Lee Hill's execution has been postponed yet again. A hearing has been scheduled for Thursday to determine whether Georgia's Lethal Injection Secrecy Act violates the United States Constitution. Hill's case is not only an example of the present-day problems with the death penalty. It also raises specters of executions-past, and gives an indication of the bleak future of the death penalty in the U.S.

The Lethal Injection Secrecy Act prevents the media, the public and even the courts from knowing who makes, and how they make, the drugs that are used in lethal injections. The Act was passed because, in recent years, anti-death penalty activists from the United Kingdom have identified the suppliers of drugs, and have persuaded these pharmaceutical companies to stop supplying these drugs for use in executions. By keeping the identities of drug suppliers a secret, Georgia is hoping that these suppliers will not be dissuaded or prevented from making and providing the drugs needed for lethal injections.

Hill's argument is essentially that this level of secrecy means that there is no way of knowing that the drugs are medically sound -- they could be being cooked up by literally anybody. Indeed, in 2010 and 2011, Georgia tried to use drugs that were obtained from a "pharmacy" that was operating out of a driving school in London. On inspection, the drugs turned out to be illegally obtained, expired, and sub-potent. Without any oversight of where the drugs are coming from, there is no way of knowing that they will actually work. Even if they do work, there is no way of knowing that they won't cause excruciating pain until it's too late. (Of course, some readers will no doubt think that Hill deserves to suffer excruciating pain -- but that's not the point. The law forbids punishments that cause excessive pain, and thus Hill's argument is a legal one rather than a moral one.)

At first, this appears to be a novel problem that is the result of modern-day execution methods and contemporary anti-death penalty activism. However, it actually mirrors the way in which many people in the Southern states lost their lives in the early part of the twentieth century. As Hill's lawyer has said, "The secrecy in this context to me invokes images of lynchings by hooded men -- it's very emblematic of an earlier time in the south." While Hill has a had a trial by jury in the way that victims of lynchings did not, Hill's impending execution will be shrouded in secrecy and carried out without any judicial oversight, in the same way that lynchings were carried out.

In terms of the future of the death penalty, the prospects are chilling. If Georgia is allowed to keep these details secret in order to avoid pressure and challenges, then how long before it keeps the dates and times of executions secret in order to prevent the likes of Amnesty International from mounting campaigns to save those facing the death penalty? Florida has recently introduced the Timely Justice Act in order to prevent lengthy delays between conviction and execution, and the developments in these states suggest that the administration of the death penalty in the U.S. is becoming akin to the administration of the death penalty in China and Japan -- where people are given little notice before their execution, and the execution is carried out in secret.

This might seem a bit far-fetched, and there will no doubt be people who will say that a democracy built on the rule of law would never act so covertly (just don't mention the National Security Agency), and would never prevent prisoners from having their cases effectively heard (just don't mention Guantanamo Bay). Sarcasm aside, though, consider what Justice John Paul Stevens has said since retiring from the U.S. Supreme Court. In 1976, Justice Stevens and a majority of the Court voted to restore the death penalty in America. In 2010, he said that this was the one decision that he now regrets. He pointed out that the death penalty today looks nothing like how the Justices in 1976 thought the death penalty would be like. They thought it would be administered fairly, and be reserved for "a very narrow set of cases" involving the worst of the worst offenders. As Justice Stevens points out, though, it's now imposed arbitrarily and unfairly. If the death penalty has changed beyond all recognition since 1976, then the Georgia and Florida statutes provide a warning of how the death penalty can continue to change for the worse.