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On The Front Lines

Citing Incompetence & Secrecy in Botched Executions, Rutherford Institute Asks U.S. Supreme Court to Require That States Disclose Lethal Injection Protocols

WASHINGTON, DC — Noting that botched executions have become a hallmark of many state and federal executions, The Rutherford Institute has asked the U.S. Supreme Court to declare unconstitutional those laws and policies which allow government officials to keep lethal injection protocols for death row executions shrouded in secrecy, thereby giving rise to torturous executions in violation of the Eighth Amendment’s ban on cruel and unusual punishments.

Weighing in before the Court in Glossip v. Gross, Rutherford Institute attorneys point out that some of the most closely guarded secrets relate to the cocktail of drugs used in an execution, as well as the qualifications and training (or lack thereof) of those administering lethal injections. Moreover, the responsibility for creating lethal injection procedures is often delegated to prison employees without discussion, meaningful study or oversight by elected representatives. As a result of a botched execution, an inmate executed by lethal injection could remain conscious, experiencing severe pain as he slowly dies. The Rutherford Institute is a vocal advocate for a nationwide moratorium on the death penalty, which has been shown to be riddled by racial prejudice, economic inequality, outright corruption, and incompetence.

“In our post-9/11 world, government secrecy has become an accepted norm, whether the topic is national security, government spending or constitutional protocols for executions. Yet transparency in government is critical to maintaining a democracy, allowing citizens to hold their elected officials accountable and serving as a bulwark against corruption and general incompetence,” stated constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of the award-winning book A Government of Wolves: The Emerging American Police State. “We must hold our government accountable to abiding by the rule of law, especially when it comes to the state executing citizens. If we are going to allow the government to kill us, then we certainly need to know all the facts beforehand.”

Until 2014, Oklahoma, like several other states carrying out executions by lethal injection, employed a three-drug protocol that first involved the administration of a strong barbiturate to induce a deep, comalike state of unconsciousness that prevents the person being executed from feeling pain. The second and third drugs cause paralysis (stopping breathing) and stop the heart respectively; by themselves, administration of the second and third drug would cause the person to feel agonizing pain akin to having liquid fire coursing through his or her veins. Therefore, the effectiveness of the first drug is crucial in assuring that the execution does not constitute cruel and unusual punishment in violation of the Eighth Amendment. When the accepted strong barbiturates became unavailable, Oklahoma and other states adopted a protocol that used midazolam, an anti-anxiety drug that experts indicate would not create the deep coma needed to avoid excruciating pain during the administration of the second two drugs during an execution. Indeed, when Oklahoma first used midazolam during an execution in April 2014, the prisoner awoke during the administration of the second two drugs, writhed in pain and called out with intelligible thoughts. Based on this experience and others involving the use of midazolam as part of a lethal injection protocol, three Oklahoma death row inmates brought an action in federal court to prevent use of the protocol, arguing that it creates an objectively intolerable risk that prisoners will experience excruciating pain during an execution. Both a federal district court and appeals court rejected the claims, which the Supreme Court agreed to review.

Affiliate attorneys Anand Agneshwar and Grace K. Chang of Arnold & Porter LLP assisted The Rutherford Institute in advancing the arguments in the amicus brief before the U.S. Supreme Court.

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