On Tuesday night, the federal Fifth Circuit Court of Appeals stayed Texas' scheduled execution of Robert Campbell. The court based its stay on evidence of Campbell's intellectual disability, which Texas prosecutors knew of, but failed to disclose to Campbell's attorneys.
A day earlier, the Fifth Circuit had denied a request to stay Campbell's execution based on assertions that Texas must disclose the source of the drug to be used in the execution, how it is prepared, and who tested it for both contaminants and potency. This ruling occurred less than two weeks after a failed execution by lethal injection in Oklahoma with drugs of unknown provenance resulted in a gruesome 40-minute scene during which Clayton Lockett shook, convulsed, and writhed in pain before the state called off the execution. Lockett died minutes later of an apparent heart attack. The Constitution Project (TCP) and many others have called for a halt to executions until an external, independent investigation reviews what happened in Oklahoma. And though the Fifth Circuit was correct to stay Campbell's execution because of his likely intellectual disability, its failure to consider the lack of transparency as an independent justification for the stay was a missed opportunity to put a stop to a trend of secrecy that is becoming all too common in states that use lethal injection.
As TCP's Death Penalty Committee's recently released report on the death penalty, "Irreversible Error," explains, states have increasingly shrouded their lethal injection protocols in secrecy. States like Oklahoma, Tennessee, Georgia, Arkansas and South Dakota have passed laws specifically designed to deny critical information about the drugs used in lethal injections to defendants, the public and, in some cases, even the courts. Louisiana is currently considering similar legislation. In others states, such as Texas, the department of correction has simply adopted a policy of nondisclosure. "Irreversible Error" concludes that public disclosure is essential because this information is critical to determining whether those drugs "pose[ ] an unacceptable risk that inmates will face an unnecessarily cruel and painful death, violative of the U.S. Constitution." The report also raises concerns about the safety of drugs from "compounding pharmacies" and the involvement of non-medical personnel in carrying out executions.
"Irreversible Error" makes clear that wherever lethal injection is administered, "jurisdictions should rely on the most current scientific knowledge to develop protocols to minimize the risk of pain or suffering." This currently includes use of only an FDA-approved barbiturate or anesthetic in a one-drug protocol with complete transparency about the source of the drug, as this method "would decrease the problems associated with drug administration and eliminate the risks from using paralyzing or painful chemical agents." Some states -- including Texas -- assert that they have provided sufficient safeguards by adopting the one-drug protocol; however, using only one drug does not eliminate all the risks inherent in lethal injection executions. Nor does a one-drug protocol protect against the unacceptable risks associated with using drugs that are not FDA approved, from undisclosed sources, during executions that are not overseen by qualified medical professionals.
These safeguards, outlined alongside "Irreversible Error"'s recommendation for using a protocol to minimize pain and suffering, are the minimum standards that any state lethal injection scheme must employ. The fact remains, however, that even states that adopt all of these safeguards cannot be assured that any specific execution does not violate the Eighth Amendment's ban on cruel and unusual punishment. It is for this reason that the report calls on states to periodically review their lethal injection schemes and update them based the most current scientific standards available. It is also for this reason that, perhaps more importantly, throughout "Irreversible Error" the Death Penalty Committee recognizes the crucial role of qualified and adequately resourced counsel to advocate for a defendant's every right and the need for courts to assume their rightful responsibility as one of the final checks against a wrongful or otherwise unconstitutional execution.
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