Just a few days ago, the state of Missouri executed a man for a murder he committed in 1991. While I am personally opposed to the death penalty for a variety of reasons, the secrecy and the method behind this execution sets it apart. Herbert Smulls, the condemned, was not an exceptional death row inmate. There were no unusual, lingering doubts about his guilt, as there have been for other recently executed inmates. What made this execution unusual and disturbing is the lack of transparency behind behind the process which is in compliance with newly enforced by federal courts mandates.
The United States is one of the few western nations that still retains the death penalty. European nations have almost entirely abolished it, as have our northern and southern neighbors. Even within the United States, 18 states have discontinued the barbaric practice, leading to problems, as ethical qualms about the death penalty have led to companies discontinuing production of the drugs used in executions. As such, states have had a difficult time procuring the drugs used in the mandated process and, on the verge of running out, have used substitutes instead. These substitutes have raised Eighth Amendment questions, as the condemned have been observed to suffer greatly throughout the process as recently as late January, in the case of Dennis McGuire.
In response to the changes in the method of lethal injections, death penalty opponents have sought information on where and how the drugs are obtained. Because major organizations have stopped production of these drugs, namely Sodium Thiopental and Pentobarbital, states have been forced to employ smaller firms known as compounding pharmacies, in order to produce them. Unfortunately, compounding pharmacies are not as carefully regulated as major pharmacies.
All this was known by Smulls’ attorney when he filed an appeal in Federal Court seeking to discover more information about the pharmacy that produced the drugs that would be used to execute Smulls. In a ruling that sets a terrible and dangerous precedent, the Eighth Circuit Court of Appeals asserted that unless lawyers can describe a more humane form of execution than lethal injection, they are not allowed to discover more about the mysterious Oklahoma pharmacy that Missouri hired to produce the drugs.
This puts Missouri death-penalty attorneys in a bind, as they should be able to to protest the defendant’s death sentence on eighth amendment provisions against cruel and unusual punishment, but are effectively prevented from doing so by the lack of information provided by the government. Furthermore, other states have already been shown to have used questionable means to acquire drugs for executions: The New York Times describes how “[the DEA] seized Georgia’s supply of one lethal-injection drug after concerns that it had been illegally imported from Britain. And last fall, Louisiana officials sought to buy drugs from an Oklahoma pharmacy, the Apothecary Shoppe, which was not licensed to provide drugs in Louisiana.” Given this tenuous national track record, and the fact that the laboratory used to test the drugs resulted in a national Meningitis outbreak in 2012, the judges’ opinion seems to be an attempt to shield a barbaric practice from well-deserved scrutiny.
Lethal injection is undoubtedly a contentious issue, but that should not mean that the federal government should put up barriers to transparency. If the drugs being used for lethal injections can indeed be classified as cruel and unusual punishment, then the just thing to do would be to discontinue their use.