What You Don't Know Will Kill You: A First Amendment Challenge to Lethal Injection Secrecy

Abstract

The conventional cocktail of drugs used in lethal injection executions has been sodium thiopental, pancuronium bromide, and potassium chloride. However, in 2011, the sole manufacturer of sodium thiopental in the United States, Hospira, Inc., restricted the distribution of the drug to prevent it from being used in executions. In response, states are now experimenting with drugs like pentobarbital, midazolam and hydro-morphone in executions. Furthermore, several states have obtained, or intend to obtain, death penalty drugs from compounding pharmacies, entities which have recently come under intense scrutiny for their lack of regulatory oversight and production of sub-standard drugs. The most alarming development, however, is the secrecy that has accompanied lethal injection executions in recent years. For example, some states, like Georgia, have passed statutes that make information about the source of the drugs and the professional qualifications of the lethal injection participants a confidential state secret. Understandably, much discussion about lethal injection drugs and states’ lethal injection protocols is focused on the Eighth Amendment and Due Process consequences for the condemned. This Note, however, analyzes a particular injection protocols is focused on the Eighth Amendment and Due Process implications, but this note will argue that the First Amendment provides a qualified right of access to information about lethal injection drugs, lethal injection secrecy statute under the First Amendment and and concludes that the public has a qualified right of access to information about lethal injection drugs under the First Amendment.