ACLU Files Suit in Botched Oklahoma Execution

By Peter Moskowitz, Al Jazeera America

27 August 14

decision by state authorities in Oklahoma to keep the botched execution hidden behind a curtain from press and public observers is being legally challenged, with a leading legal rights group joining media outlets in charging that prison officials acted unconstitutionally.

The American Civil Liberties Union (ACLU) announced the lawsuit Monday in a bid to prevent the state from concealing future executions from reporters and the public.

The suit — in which the Guardian newspaper and the Oklahoma Observer also feature as plaintiffs — comes at a time of increased scrutiny over the administration of lethal injections.

Amid a growing scarcity of ingredients for the lethal drug cocktail, death penalty states are increasingly attempting to hide information pertaining to executions, including the types of drugs used and where they were brought. That secrecy, experts say, can lead to executions going horribly wrong.

“Both death penalty supporters and opponents should be able to agree that the most extreme use of state power should absolutely not occur in the shadows,” ACLU attorney Lee Rowland said in a statement. “It isn't transparency when the government shines a light only on the things it wants us to see.”

The ACLU suit relates to the April 29 execution of Clayton Lockett, who was sentenced to death for shooting a teenager in 1999. Lockett’s execution was surrounded with controversy from the beginning, as the state scrambled to find a pharmacy with the drugs needed for an execution. The state would not reveal where it ultimately got its drugs.

Lockett’s execution took 40 minutes, and witnesses said that he could be seen grimacing in pain, clenching his teeth, and twitching. Right after Lockett began writhing on his gurney, the ACLU contends that prison officials closed the curtain on the window separating the media from the execution room. The length of the execution led to a six-month moratorium on executions in the state. The White House said that the procedure “fell short” of humane standards.

“We now know that Lockett died ... long after the media's access was shut down by the state,” Rowland said. “As to what happened in those fateful 25 minutes, we have only the words of state officials.”

The First Amendment-based lawsuit was filed with the U.S. District Court in Western Oklahoma.

The ACLU and the news organizations’ suit against the state’s Department of Corrections comes just months after The Associated Press and The Guardian sued the state of Missouri for hiding the names of the drugs used in its executions.

Over the years, as major drug makers refuse to allow their drugs to be used for lethal injections, citing ethical standards, states have increasingly turned to small compound pharmacies that are often free from public scrutiny and shareholder pressure.

Several states, including Ohio, Missouri and Oklahoma, have refused to divulge where the drugs come from, saying it is a matter of state security. Experts say that has a chilling effect on press freedom and the public debate surrounding executions.

“The public has a right to know what the government is doing,” said Richard Dieter, the director of the Death Penalty Information Center, a Washington-based nonprofit. “We can’t really have a debate about what’s going on if there’s no information about it.”

Dieter and others also say the increased secrecy of executions prevents states from carrying out lethal injections in a humane manner.

“Historically, states were using the same three drug process, so even if they didn’t spell everything out there was some commonality in executions,” said Deborah Denno a professor who has focused on executions at Fordham University School of Law. “But now we know less, and it’s a big deal because with these new kinds of drugs, every execution is an experiment.”

If executions and the drugs used were made public, some say states could learn from their mistakes and prevent what happened to Clayton Lockett in the future.

“Each state is operating in a silo,” Dieter said. “In any other area of science, there would have been meetings, discussion and improvement. ... The secrecy allows these executions to go badly.”