BEHIND THE CURTAIN:
Secrecy and the Death Penalty
in the United States

BEHIND THE CURTAIN:
Secrecy and the Death Penalty
in the United States

A report by the
Death Penalty Information Center
Principal Author: Robin Konrad†
Edited by Robert Dunham and Ngozi Ndulue

TABLE OF CONTENTS
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EXECUTIVE SUMMARY
SECRECY AND DEMOCRACY
HISTORICAL TRANSPARENCY IN EXECUTIONS
LETHAL INJECTION: THE CURRENT METHOD OF EXECUTION
THE SECRECY LANDSCAPE
	 New Drug Secrecy Laws
	 Secrecy in Viewing the Execution Itself
WHAT IS THERE TO HIDE?
	 Purported Reasons for Secrecy
	 Setting Aside the Veil: Uncovering Incompetence, Illegality, and Deception
		The Incompetent Physician-Executioner
		Illegal Importation of Drugs
		Compounding Pharmacies with Questionable Practices
		Misrepresenting Facts to Obtain Drugs
		Swapping Drugs and Paying Cash for Drugs
THE COST OF SECRECY: AN ACCOUNT FROM OKLAHOMA
EVOLVING STANDARDS OF DECENCY
PROBLEMATIC EXECUTIONS USING NEW DRUG FORMULAS
	 Florida
	 Ohio
	 Oklahoma
	 Arizona
	 Alabama
	 Virginia
	 Arkansas
	 Tennessee
	 Nebraska
CONCLUSION

EXECUTIVE
SUMMARY
	 During the past seven years, states have begun conducting executions with
drugs and drug combinations that have never been tried before. They have done
so behind an expanding veil of secrecy laws that shield the execution process from
public scrutiny.
	 As pharmaceutical companies have taken action to prevent states from using
their medicines to execute prisoners, states have responded by procuring whatever
drugs seem available and obtaining them secretly through questionable means.

	 Since January 2011, legislatures in thirteen states have enacted new secrecy
statutes that conceal vital information about the execution process. Of the seventeen states that have carried out 246 lethal-injection executions between January
1, 2011 and August 31, 2018, all withheld at least some information about the
about the execution process. All but one withheld information about the source
of their execution drugs. Fourteen states prevented witnesses from seeing at least
some part of the execution. Fifteen prevented witnesses from hearing what was

STATES WITH NEW
SECRECY LAWS

4 BEHIND THE CURTAIN

happening inside the execution chamber. None of the seventeen allowed witnesses to know when each of the drugs was administered.

	 This retreat into secrecy has occurred at the same time that states have conducted some of the most problematic executions in American history. Lethal
injection was supposed to be a more humane method of execution than hanging,
the firing squad, or the electric chair, but there have been frequent reports of
prisoners who were still awake and apparently experiencing suffocation and excruciating pain after they were supposed to be insensate. These problems have
intensified with the use of new drug formulas, often including midazolam. In
2017, more than 60% of the executions carried out with midazolam produced
eyewitness reports of an execution gone amiss, with problems ranging from labored breathing to gasping, heaving, writhing, and clenched fists. In several of
these cases, state officials denied that the execution was problematic, asserting
that all had proceeded according to protocol. But without access to information about drugs and the execution process, there is no way the public can judge
for itself.
	 Disturbing stories of botched executions are just one sign of the need for
public scrutiny of lethal injection. Investigators who have managed to uncover
hidden information have found evidence of illegal actions, misrepresentations to
the courts and the public, and incompetence in the conduct of executions. States
have repeatedly tried to conceal controversial information about executions,

EXAMPLES OF QUESTIONABLE STATE
CONDUCT IN CARRYING OUT LETHAL
INJECTION EXECUTIONS
•	 Hiring a physician-executioner who has been
sued for malpractice at least 20 times, has
been barred from practicing at two hospitals,
and whose failure to use a written protocol,
coupled with his dyslexia, resulted in him
administering the wrong amounts of drugs;
•	 Illegally importing drugs from a sham
pharmacy operating out of a London storefront labeled “driving academy”; and
•	 Buying drugs from a compounding pharmacy
that committed more than 1800 violations of
state health and safety guidelines and which
the FDA found had “questionable potency,
disinfecting and sterilization practices.”

5

including the use of illegally imported drugs, less than reputable drug sources,
and unqualified executioners. Without transparency, cases of incompetence or
misconduct can continue unchecked.
	 Governmental transparency is fundamental to democracy. The public has a
right to know how its government is carrying out its business and whether the
government is working honestly and competently, by and for the People. The
Eighth Amendment requires that punishments imposed by the government conform to public standards of decency, but this is impossible to determine if crucial
information about a punishment is kept from the public.
	 Secrecy increases the risk of problems. It results in more botched and potentially problematic executions. Prisoners have a right to information about the
execution process so that they can raise legitimate challenges to execution methods
that may subject them to excruciating pain. Without this information, prisoners
cannot meet the high burden of proof the courts have set out for challenging
executions.

	 This report documents the laws and policies that states have adopted to make
information about executions inaccessible to the public, to pharmaceutical companies, and to condemned prisoners. It describes the dubious methods states have
used to obtain drugs, the inadequate qualifications of members of the execution
team, and the significant restrictions on witnesses’ ability to observe how executions are carried out. It summarizes the various drug combinations that have
been used, with particular focus on the problems with the drug midazolam, and
provides a state-by-state record of problems in recent executions. It explains how
government policies that lack transparency and accountability permit states to
violate the law and disregard fundamental principles of a democratic government
while carrying out the harshest punishment the law allows.

6 BEHIND THE CURTAIN

SECRECY AND
DEMOCRACY
“Secrecy and a free, democratic government don’t mix.”
	

President Harry S Truman

	 The First Amendment protects the right of the People “to know that their
government acts fairly, lawfully, and accurately.”1 For that right to have any meaning, the public must have access to information about how the government is
actually carrying out its business. The public’s need for openness, transparency,
and accountability is especially crucial when the government exercises the power
to end an individual’s life. But the growing secrecy that shields current state efforts
to carry out executions poses significant challenges to the rule of law and to the
legitimacy of the democratic institutions administering capital punishment.

	 Secrecy in executions implicates a variety of policy and constitutional concerns. First and most obviously, the public has the right to oversee and to approve
or disapprove of the execution process. Secrecy not only prevents the public from
having robust, informed, and honest discussion about the death penalty, it also
makes public oversight impossible. Any discussion about the government’s ability and willingness to carry out capital punishment in a competent, principled,
and constitutionally acceptable manner is thwarted when states selectively hide
information.
	 Second, secrecy increases the risk of botched executions and has produced
predictably problematic executions. To protect information from disclosure, state
officials have circumvented normal procedures and attempted to modify protocols
without oversight.2 Hiding execution information from the public also fosters
an environment of unaccountability that lacks essential checks and balances.
When the veil of secrecy has been penetrated, courts and investigators have discovered that states have violated state and federal laws and regulations, deceived
drug suppliers and manufacturers, encouraged breaches of contracts, and lied to
the public.

	 Third, secrecy frustrates the judicial process by unfairly limiting prisoners’
ability to prevent potentially unconstitutional executions. In order to challenge
experimental or demonstrably inappropriate drug protocols or other dangerous
execution practices, prisoners need all relevant information about their executions.
The U.S. Supreme Court has imposed on prisoners an exceptionally high burden
of proof in showing that a state’s execution method will subject them to unconstitutional levels of pain and suffering. Under the Eighth Amendment, prisoners
7

must now show (1) that the state’s chosen method of execution will cause severe
and substantial pain and suffering, and (2) that a less painful alternative—either
using different drugs or a different method—is available to the state. States’ secrecy practices have denied prisoners meaningful access to the courts. State officials
have suppressed information that could prove prisoners’ claims while simultaneously arguing those claims should be rejected because they are unproven.

	 Finally, transparency is critical to the Supreme Court’s determination of
whether execution practices are constitutional. The Eighth Amendment looks
to “evolving standards of decency that mark the progress of a maturing society”3
in deciding which means of punishment the public will tolerate and which have
become unconstitutionally cruel and unusual. If the courts are to do their job under a standard that purports to measure “the norms that ‘currently prevail,’”4 they
need accurate information on which to base that judgment. As Justice Thurgood
Marshall argued more than forty years ago, “the constitutionality of the death
penalty turns … on the opinion of an informed citizenry.”5

“[T]his investigation revealed that the
paranoia of identifying participants
clouded the Department’s judgment
and caused administrators to blatantly
violate their own policies.”
Oklahoma grand jury report regarding the execution of
Charles Frederick Warner and attempted execution of
Richard Glossip6

8 BEHIND THE CURTAIN

HISTORICAL
TRANSPARENCY IN
EXECUTIONS
	 Executions in the United States have historically been public, although
society has tolerated some limited secrecy. For example, hangings would occur
in the public square for citizens to witness, but the executioner’s identity would
be shielded by a hood. In the nineteenth century, however, states began moving
executions from the public square to behind prison walls.7 These “private” execution laws were “originally enacted for paternalistic reasons and in response
to a powerful movement in the 1830s to abolish capital punishment.”8 Part of
the purpose of moving executions out of public view was to avoid a spectacle
and to afford a certain amount of dignity to the prisoner. But as a consequence,
the need for transparency from inside the prison, including allowing public and
media witnesses access to the entire execution, greatly increased. Believing that
the “disgust produced by public executions would lead ‘to the entire abolition of
capital punishment,’” legislators who opposed capital punishment also opposed
removing executions from public view.9
	 Removing executions from the public arena was intended in part to “civilize
society.” However, the private execution laws “had the perverse effect of degrading
America’s democracy…. [T]hey often attempted to suppress public debate of the
death penalty itself.”10 The public’s inability to see for itself how executions were
being carried out impaired society’s capacity for robust, fully informed discussion
about state-sanctioned killing. Moving executions behind prison walls left information about how they were conducted solely in the government’s control. As a
result, guaranteeing public access to that information became more essential.

9

LETHAL INJECTION:
THE CURRENT METHOD OF EXECUTION

	 Lethal injection has been the most common method of execution in the
modern era of capital punishment in the United States. Between the resumption
of executions in 197711 and August 31, 2018, 1,306 executions (nearly 90%) have
used lethal injection.12 Until 2009, most lethal-injection executions used the same
three-drug combination:13
	 (1)		the first drug, a barbiturate called sodium thiopental, was intended to 	
				anesthetize the prisoner;
	 (2)		the second drug, a paralytic, was given to prevent any movement; and
	 (3)		the third drug, potassium chloride, was used to induce cardiac arrest
				and stop the prisoner’s heart.

	 When states first turned to using drugs in executions, many did so in the
belief that lethal injection would be more humane than the more visibly gruesome methods it replaced: hanging, electrocution, gas, and firing squad. Other
states adopted lethal injection to avoid legal challenges to the constitutionality of
their prior methods.14 Despite states’ purported goal of ensuring more humane
executions, scholars have estimated that more than 7% of lethal-injection executions in the U.S. through 2010 were botched.15 Beginning in 2011, as states have
experimented with new execution drugs, reports of problematic executions have
noticeably increased. Eight new drugs have been used in executions since that
time: pentobarbital, midazolam, hydromorphone, etomidate, potassium acetate,
diazepam, cisatracurium besylate, and fentanyl citrate.16 In 2017, in seven of the
eleven executions carried out using the recently introduced drug midazolam,
eyewitnesses reported problems including wincing, gasping, labored breathing,
heaving, convulsions, and clenched fists.

In 2017, the drug midazolam was
used in 11 executions. In more
than 60% of those executions,
eyewitnesses reported problems
ranging from labored breathing
to gasping, heaving, convulsions,
and clenched fists.
10 BEHIND THE CURTAIN

	 Lethal injection, especially when carried out with a paralytic that prevents the
prisoner from moving or speaking, appears to be peaceful and painless. But if the
paralytic is administered to a prisoner who is not properly anesthetized, then he
will feel as though he is suffocating to death. Likewise, if the third drug in the
sequence, potassium chloride, is administered to a sensate prisoner, he will feel as
though he’s being burned alive from the inside.17

	 The use of a paralytic in the three-drug protocol has been controversial, in
part, because the serenity it appears to create is a result of the drug “mask[ing]
any outward sign of distress.”18 The paralysis induced by the second drug acts as
a chemical veil of secrecy that prevents anyone from knowing whether the other
drugs worked properly and the extent to which the prisoner is experiencing pain.
U.S. Supreme Court Justice John Paul Stevens asserted that any benefits gained
by using a paralytic are “vastly outweighed by the risk that the inmate is actually
experiencing excruciating pain that no one can detect.”19

	 Lethal-injection practices have been greatly affected by drug availability.
Pharmaceutical companies oppose the use of their medicines in executions. Every
FDA‐approved supplier of drugs historically used by prisons for executions has
now imposed distribution controls on its medicines, blocking their use in lethal
injections.20 The universality of these distribution controls effectively ended the
open market for execution drugs. States have responded by attempting to circumvent controls and by experimenting with new drug combinations.21

	 State officials have expanded their secrecy laws to undermine pharmaceutical
companies’ efforts to protect the integrity of their products. For example, Arkansas
deliberately circumvented drug distribution contracts that prohibited the sale of
medicines for use in executions. In response, McKesson Medical-Surgical, Inc.,
which distributed the paralytic drug Arkansas acquired for use in executions, sued
the state. McKesson alleged that Arkansas had obtained the drugs through “false
pretense, trickery and bad faith.”22 Fresenius Kabi and West-Ward Pharmaceuticals Corporation, the manufacturers of the other two drugs, submitted a brief in

11

support of McKesson’s claims. In addition to arguing that the use of their drugs
in Arkansas’s executions violates existing “contractual supply-chain controls,” the
companies said that Arkansas’s conduct “also creates a public-health risk because it
could result in the denial of medicines from patients who need them most.”23 The
Association for Accessible Medicines, a professional organization representing
generic drug manufacturers, later filed a brief in the United States Supreme Court
describing at length the public health risks of diverting “essential medicines” to
non-therapeutic uses.24

	 As pharmaceutical companies have tightened restrictions on the sale of medicines previously used in executions, states have experimented with a variety of
new drug formulas. Despite the popular conception that lethal injection is more
humane than other methods, numerous lethal-injection executions have been
problematic and some horribly botched over the decades. Indeed, the method
has only become riskier and more troublesome in recent years. In April 2014,
for example, Oklahoma’s execution of Clayton Lockett was an appalling failure,
and witnesses saw and heard Lockett writhing in agony before the state closed
the curtains and halted the execution. Forty-three minutes after the attempted
execution began, Lockett died of a heart attack.25
	 Numerous other problems have occurred during lethal-injection executions.
State officials have chosen execution-drug formulas that do not work. Unqualified executioners have failed to properly insert the intravenous (IV) catheter. In
some executions, the problems have been visible to witnesses who have reported
prisoners gasping repeatedly for breath or straining and writhing in pain. In other
executions, because states conceal execution information, the public learned about
a state’s mistakes only after the fact and generally only after a lawsuit had been
filed. The public will never know about problems in other executions, because
states have sole control of the information and are unwilling to divulge it.

“Execution absent an adequate sedative
… produces a nightmarish death: The
condemned prisoner is conscious but
entirely paralyzed, unable to move or
scream his agony, as he suffers what may
well be the chemical equivalent of being
burned at the stake.“
U.S. Supreme Court Justice Sonia Sotomayor26

12 BEHIND THE CURTAIN

“States likely withhold crucial details because,
almost invariably, the more data states reveal
about their lethal injection procedures, the
more those states demonstrate their ignorance
and incompetence. The result is a perpetual
effort by states to maintain secrecy about all
aspects of the execution.”
Fordham University School of Law Professor Deborah Denno27
The continuing problems with lethal injection underscore the need for information about lethal-injection drugs; yet this information has become increasingly
difficult to obtain. This situation is all the more disturbing in light of what we do
know about the process and secrecy. For example, we know that states have broken
the law, deliberately induced contract breaches, lied to or misled drug suppliers,
obtained drugs from questionable sources, and swapped drugs with each other.
As these tactics have been challenged, states have responded by adopting stricter
secrecy laws and departmental orders that prevent the public from obtaining information about executions, making their actions even less transparent.
	 In 2015, the American Bar Association passed a resolution urging “each jurisdiction that imposes capital punishment to ensure that it has execution protocols
that are subject to public review and commentary, and include all major details
regarding the procedures to be followed, the qualifications of the execution team
members, and the drugs to be used.”28 Citing concerns about increased secrecy,
botched executions, and protecting constitutional rights, the ABA concluded:
“Society’s interest in the fair administration of the death penalty is significant—
and far outweighs any jurisdiction’s asserted governmental interest in secrecy
regarding their execution drugs and procedures.”29

	 Laws that conceal the identity of executioners have existed for years. Although
originally only the executioner’s name was kept secret, states now withhold information about the qualifications of those participating in the execution process
and the sources of their execution drugs. These expanded secrecy practices also
conceal details of the execution. As problematic lethal injections have increased,
so too have efforts to hide portions of the execution itself.

13

THE SECRECY
LANDSCAPE:
NEW DRUG SECRECY LAWS

	 Since January 1, 2011, legislatures in thirteen states have enacted new secrecy
statutes that prevent the public from obtaining important information about
executions.30 In addition, at least eight states—Alabama, Arizona, Florida, Idaho,
Missouri, Nebraska, Pennsylvania, and South Carolina—have invoked existing
laws, regulations, policies, or execution protocols to justify their refusal to disclose
this information.31 At least four states with secrecy laws also make individuals
either civilly or criminally liable for disclosing such information.32 Ohio—whose
secrecy law imposes punitive civil sanctions on anyone who discloses protected
information—has more than twenty executions scheduled between December
2018 and January 2023.33

STATES THAT HAVE ENACTED NEW
SECRECY LAWS SINCE JANUARY 1, 2011
STATE

ARKANSAS

GEORGIA

14 BEHIND THE CURTAIN

STATUTE/
EFFECTIVE YEAR

INFORMATION CONCEALED FROM PUBLIC

Any
exception for
disclosure in
statute?

Ark. Code Ann.
§5-4-617
(2015)

“[I]dentities of the entities and persons who
participate in the execution process or administer
the lethal injection”; “entities and persons who
compound, test, sell, or supply the drug or drugs
…, medical supplies, or medical
equipment
for the
STATES
WITH NEW
execution process”
SECRECY LAWS

May be
disclosed
in litigation
under a
protective
order

Ga. Code Ann.
§42-5-36
(2013)

“[I]dentifying information” including “professional
qualifications” “of any person or entity who
participates in or administers the execution of a
death sentence and the identifying information of
any person or entity that manufactures, supplies,
compounds, or prescribes the drugs, medical
supplies, or medical equipment utilized in the
execution of a death sentence”

NO

STATES THAT HAVE ENACTED NEW SECRECY LAWS SINCE JANUARY 1, 2011	`	

		

continued from page 14

Any
exception for
disclosure in
statute?

STATE

STATUTE/
EFFECTIVE YEAR

INDIANA

Ind. Code
§ 35-38-6-1
(2017)

“Information reasonably calculated to lead to the
identity” of a “pharmacist, a pharmacy, a wholesale
drug distributor, or an outsourcing facility that
provides a lethal substance to the department
of correction” or “an officer, an employee, or a
contractor” of those persons

NO

LOUISIANA

La. Rev. Stat.
§15:570
(2012)

“[I]dentity of any persons … who participate or
perform ancillary functions in an execution of the
death sentence, either directly or indirectly … and
information about those persons which could lead to
the determination of the identities of those persons”

NO

MISSISSIPPI

Miss. Code Ann.
§99-19-51
(2016)

“[A]ll members of the execution team, a supplier
of lethal injection chemicals, and the identities of
those witnesses listed … who attend as members
of the victim’s or the condemned person’s
immediate family”

NO

NORTH
CAROLINA

N.C. Gen Stat. Ann.
§15-190
(2015)

Any information that “[r]eveals name, address,
qualifications, and other identifying information
of any person or entity that manufactures,
compounds, prepares, prescribes, dispenses,
supplies, or administers the drugs or supplies
obtained for any purpose”

NO

NO

INFORMATION CONCEALED FROM PUBLIC

OHIO

Ohio Rev.
Code Ann.
§ 2949.221
(2015)

Any information “that identifies or reasonably leads
to the identification of” an individual, corporation, or
association who “manufactures, compounds, imports,
transports, distributes, supplies, prescribes, prepares,
administers, uses, or tests any of the compounding
equipment or components, the active pharmaceutical
ingredients, the drugs or combination of drugs, the
medical supplies, or the medical equipment used
in the application of a lethal injection of a drug or
combination of drugs in the administration of a death
sentence by lethal injection”

OKLAHOMA

Okla. Stat. Ann. tit.
22, §1015
(2011)

“[A]ll persons who participate in or administer the
execution process and persons who supply the
drugs, medical supplies or medical equipment for the
execution”

NO

SOUTH
DAKOTA

S.D. Codified Law
§23A-27A-31.2
(2013)

“The name, address, qualifications, and other
identifying information relating to the identity of
any person or entity supplying or administering the
intravenous injection substance or substances”

NO

15

STATES THAT HAVE ENACTED NEW SECRECY LAWS SINCE JANUARY 1, 2011

STATUTE/
EFFECTIVE YEAR

STATE

	

		

continued from page 15

INFORMATION CONCEALED FROM PUBLIC

Any
exception for
disclosure in
statute?

“[T]hose parts of the record identifying an individual
or entity as a person or entity who or that has been or
may in the future be directly involved in the process
of executing a sentence of death,” which includes “an
employee of the state who has training related to direct
involvement in the process of executing a sentence
of death, a contractor or employee of a contractor, a
volunteer who has direct involvement in the process
of executing a sentence of death, or a person or entity
involved in the procurement or provision of chemicals,
equipment, supplies and other items for use in carrying
out a sentence of death”

NO

TENNESSEE

Tenn. Code Ann.
§10-7-504
(2013)

TEXAS

Tex. Crim. Proc.
Code Ann.
art. 43-13
(2015)

“[A]ny person who participates in an execution …
including a person who uses, supplies, or administers
a substance during the execution” and “any person or
entity that manufactures, transports, tests, procures,
compounds, prescribes, dispenses, or provides a
substance or supplies used in an execution”

NO

Va. Code.
§53.1-234
(2016)

“The identities of any pharmacy or outsourcing
facility that enters into a contract with the Department
for the compounding of drugs necessary to carry
out an execution by lethal injection, any officer or
employee of such pharmacy or outsourcing facility,
and any person or entity used by such pharmacy or
outsourcing facility to obtain equipment or substances
to facilitate the compounding of such drugs and
any information reasonably calculated to lead to the
identities of such persons or entities, including their
names, residential and office addresses, residential
and office telephone numbers, social security
numbers, and tax identification numbers”

May be
disclosed
during civil
lawsuit only
if good
cause is
shown

Wyo. Code
§7-13-916
(2015)

“The identities of all persons who participate in the
execution of a death sentence as a member of the
execution team or by supplying or manufacturing the
equipment and substances used for the execution
are confidential. Disclosure of the identities made
confidential by this section may not be authorized or
ordered.”

NO

VIRGINIA

WYOMING

	 Between January 1, 2011, and August 31, 2018, seventeen states conducted a
total of 246 lethal-injection executions. Of those states, all but Delaware (which
no longer has an active death penalty) have laws or policies in place that restrict
disclosure of information about execution drugs. States have taken extreme steps
to hide the identities of any entity with even minimal involvement in executions,
preventing the public from obtaining critical information even after troubling
executions have occurred.
16 BEHIND THE CURTAIN

LETHAL INJECTION EXECUTIONS
BETWEEN JANUARY 1, 2011
AND AUGUST 31, 2018
STATE

NUMBER OF
EXECUTIONS

% OF TOTAL

Year drug secrecy law
(or policy) was enacted

TEXAS

89

36.17%

2015

FLORIDA

27

10.98%

2000

GEORGIA

24

9.76%

MISSOURI

21

8.54%

OKLAHOMA

18

7.32%

2011

OHIO

15

6.09%

2015

ALABAMA

14

5.69%

None, but does not disclose information

ARIZONA

13

5.28%

In 2010, interpreted 1998 statute
to include drug source

MISSISSIPPI

8

3.25%

2016

ARKANSAS

4

1.63%

2015

VIRGINIA

4

1.63%

2016

DELAWARE

2

0.81%

None, but no longer has active
death penalty

IDAHO

2

0.81%

In 2011, changed regulations to
include drug source

SOUTH
DAKOTA

2

0.81%

2013

NEBRASKA

1

0.41%

2009

SOUTH
CAROLINA

1

0.41%

In 2015, interpreted 2010 statute to
include drug source

TENNESSEE

1

0.41%

2013

STATES WITH NEW2013
SECRECY LAWS
In 2013, expanded protocol to include
drug source under 2007 statute

17

	 The states that conduct the most executions all have restrictive secrecy laws.
As a result, the public is deprived of critical information about the qualifications
of the executioners and the source of the drugs in the majority of executions
that are carried out in the United States. Lacking this information, the general
public cannot make informed decisions about the way states are administering
capital punishment.
	 In the past several years, there have been visibly problematic executions, details
of which remain obscured as a result of secrecy about the drugs and execution
procedures. Two troubling examples occurred in Alabama and Arkansas.

	 Alabama has one of the most restrictive secrecy policies in the nation,
consistently maintaining that all documents associated with an execution are
confidential.34 In December 2016, Alabama executed Ronald Smith. During the
execution, witnesses reported that Smith clenched his fists and gasped repeatedly
for nearly fifteen minutes. After the execution, a Department of Corrections
spokesperson responded to criticisms of the execution by telling the public the
state had “followed [its] protocol.”35 The state later refused to provide any documentation about the execution.36 As a result of intervention by several media
outlets, a federal district court ordered the state to reveal documents filed under
seal that outline its lethal injection protocol. The court held that the documents
must be released “because the public has a common law right of access to the
sealed records relating to Alabama’s lethal injection protocol.”37 However, the
order has been stayed while the state appeals to the U.S. Court of Appeals for the
Eleventh Circuit.38
	 When Arkansas executed Kenneth Williams on April 27, 2017, media witnesses observed Williams “coughing, convulsing, jerking, and lurching, with sound
that was audible even with the microphone turned off.”39 A witness to ten executions reported that this was “the most [he had] seen an inmate move three or four
minutes in.”40 Though disturbing, the physical reaction was not unanticipated. It
was the type of reaction that had become associated with the use of midazolam
in executions. But Arkansas officials denied the obvious. A spokesperson for the
Governor called the execution “flawless” and dismissed Williams’s convulsions as
“an involuntary muscular reaction.”41
	 State responses to other problematic executions follow the same pattern. Even
when eyewitnesses have seen and described classic symptoms of execution-drug
failures, prison officials have asserted that the execution was carried out without
complications or responded to concerns by claiming to have successfully followed
the protocol when the protocol itself was the reason for the troubling execution.

18 BEHIND THE CURTAIN

STATES’ RESPONSES TO PROBLEMATIC
MIDAZOLAM EXECUTIONS
Prisoner, state,
date of
execution
Dennis
McGuire
Ohio
January
16, 2014

WITNESS ACCOUNTS OF EXECUTION
USING MIDAZOLAM

STATE’S RESPONSE TO EXECUTION

Approximately five minutes into the
execution, “he began struggling. His body
strained against the restraints around his
body, and he repeatedly gasped for air,
making snorting and choking sounds for
about 10 minutes. His chest and stomach
heaved; his left hand, which he had used
minutes earlier to wave goodbye to his
family, clenched in a fist.”42

“The process worked very well and the
execution was carried out in compliance
with [the execution policy].”
—Warden Donald R. Morgan43

STATES WITH NEW
SECRECY LAWS

Clayton
Lockett
Oklahoma
April
29, 2014

After being declared unconscious over
10 minutes into execution, Lockett began
speaking and then grimaced and tensed
his body several times over a three-minute
period, his head rising from the gurney
and his feet kicking several times.44

“The state lawfully carried out a
sentence of death. Justice was served….
Execution officials said Lockett
remained unconscious after the lethal
injection drugs were administered.”
—Oklahoma Governor Mary Fallin45

Ronald
Smith
Alabama
December
8, 2016

“During 13 minutes of the execution,
from about 10:34 to 10:47, Smith
appeared to be struggling for breath
and heaved and coughed and clenched
his left fist after apparently being
administered the first drug in the threedrug combination.”46

“We followed our protocol.”
— Jeff Dunn, Commissioner for the
Alabama Department of Corrections47

“Prison officials closed a blue curtain at
8:54 p.m., shielding Gray from view. That
is typically when officials insert the IV and
place heart monitors before starting the
injection. The curtain remained closed for
more than 30 minutes before it was opened
and the lethal injection began, which [Gray’s
attorney] said was significantly longer than
usual and concerning.”48

Lisa Kinney, Director of Communications
for the Virginia Department of Corrections
said she “could not explain why the curtain
was closed that long.”49

“[A]bout three minutes in, Williams’ body
jerked 15 times in quick succession—
lurching violently against the leather
restraint across his chest—then the rate
slowed for a final five movements.”50

J.R. Davis, a spokesman for Gov. Asa
Hutchinson who did not witness the
execution, called the execution “flawless”51
and described the movements as “an
involuntary muscular reaction.”52 The
following day, Governor Hutchinson
rejected Williams’s attorney’s request for
an independent investigation saying: “You
don’t call for an independent investigation
unless there’s some reason for it. Last
night, one of the goals was there not be
any indications of pain by the inmate, and
that’s what I believe is the case.”53

Ricky Gray
Virginia
January
18, 2017

Kenneth
Williams
Arkansas
April 27,
2017

19

STATES’ RESPONSES TO PROBLEMATIC MIDAZOLAM EXECUTIONS	

continued from page 19

Prisoner, state,
date of
execution

WITNESS ACCOUNTS OF EXECUTION
USING MIDAZOLAM

William
Morva
Virginia
July 6,
2017

A media witness to Morva’s execution
reported that approximately three minutes
after Morva was silent, he began “gasping
for air” several times, with his stomach
contracting “pretty dramatically.”54

“Execution was carried out without
complications.”
—Lisa Kinney, Director of
Communications for the Virginia
Department of Corrections55

Gary Otte
Ohio
September
17, 2017

Within one minute after the drug
administration began, Otte’s “stomach
was moving unnaturally up and down.”
Tears were “streaming down the left side
of his face. His left fist was curled tightly.”56

“The process worked very well and the
execution was carried out in compliance
with [the execution policy].”
—Warden Ron Erdos57

Torrey
McNabb
Alabama
October
19, 2017

At 9:12pm, more than fifteen minutes
into the execution, a correctional officer
leans down, saying McNabb’s name.
McNabb’s “left hand twitches a few
seconds later. The officer again lifts his
eyelid and proceeds to pinch him at 9:13.
McNabb’s body briefly writhes, and his
sister says, ‘His whole body moving.’ All
four witnesses are audibly upset that he is
still moving at this point. At 9:17, his right
hand and arm abruptly shoot straight up
from their resting place, staying aloft for
several seconds. He visibly grimaces for
a brief moment, twisting his head against
the gurney.”58

20 BEHIND THE CURTAIN

STATE’S RESPONSE TO EXECUTION

“I’m confident he was more than
unconscious at that point. Involuntarily
movement is not uncommon. That’s how
I would characterize it.”
—Jeff Dunn, Commissioner for the
Alabama Department of Corrections59

Secrecy in Viewing
the Execution Itself
	 None of the states that have conducted executions in the past seven years
ensured that witnesses could see and hear the entire execution process, and most
of these states restricted witnesses from viewing the bulk of the process. Indeed, as
concerns have grown about the experimental drug cocktails states have been using
in executions and about the questionable—and sometimes illegal—methods they
have employed to obtain these drugs, states have increasingly retreated into withholding information from the public.				

WITNESS LIMITATIONS FOR EXECUTIONS
BETWEEN JANUARY 1, 2011
AND AUGUST 31, 2018
State

Did not guarantee that
witnesses could view
prisoner during entire
execution process

Did not guarantee that
witnesses could hear
what was happening in
execution chamber

Did not guarantee
that witnesses could
know when a drug was
administered

ALABAMA
ARIZONA60
ARKANSAS
DELAWARE
FLORIDA

STATES WITH NEW
SECRECY LAWS

GEORGIA
IDAHO61
MISSISSIPPI
MISSOURI
NEBRASKA
OHIO
OKLAHOMA
SOUTH CAROLINA
SOUTH DAKOTA
TENNESSEE
TEXAS
VIRGINA

21

	 Most states have prevented witnesses from viewing the execution process until the prisoner has already been strapped to the gurney and the intravenous (IV)
lines have been placed. This has left the public to speculate as to why it took prison
personnel extended periods of time to set the IV lines in a number of recent
executions. As of August 31, 2018, only five of the states with recent executions
(Arizona, Georgia, Idaho, Ohio, and Tennessee) have procedures allowing witnesses to see the prisoner during the entire execution—beginning with the guards
bringing the prisoner into the execution chamber and strapping him or her to the
gurney, viewing the insertion of the IV line(s), watching the prisoner as the lethal
drugs are administered, and concluding when death is pronounced.62 Georgia
limits the viewing of the prisoner being brought into the execution chamber and
the IV being inserted to only a single media witness. The remaining witnesses
are brought in only after that process is complete. Tennessee limits the non-state
witnesses of IV insertion to the prisoner’s lawyer. Arizona changed its procedures
in 2017 to permit witnesses to see the entire execution process but has yet to carry
out an execution under these procedures.
	 States also have severely limited what witnesses see and hear after the prisoner
is strapped to the gurney and the IV lines are established. In most states, witnesses
reported that the prisoner is covered—at least in part—with a sheet. The sheet
imposes a visual layer of secrecy, preventing witnesses from seeing the prisoner’s
movements, which could indicate adverse reactions to the execution drugs. In all
but Mississippi and Tennessee, there was no active microphone inside the execution chamber after the condemned prisoner made his last statement. This audio
censorship masks the sounds witnesses can hear during the process, leaving the
public to wonder whether a prisoner is gasping versus snoring, gurgling versus
choking, or verbally expressing pain during the execution process.
	 Finally, most states have withheld critical information as to when each of the
lethal drugs is being administered. As of August 2018, Arizona is the only state
that has a written execution protocol that ensures that witnesses are informed

22 BEHIND THE CURTAIN

of the administration of each of the drugs. Arizona did not change its protocol
voluntarily. Rather, the transparency was compelled by a December 2016 federal
court order in a lawsuit filed after the nearly two-hour botched execution of Joseph Wood.63 Arizona has not yet attempted to carry out an execution under this
new protocol.

	 By preventing witnesses from observing and listening to the entire execution
process, states are limiting meaningful discussion and oversight of executions.
Witnesses who are not informed and cannot see when the drugs are being administered are missing critical information about the progress of the execution.
Once the paralytic is administered, the prisoner is no longer able to move, and
any reaction to painful stimuli will not be visible. As a result, states can assert that
an execution was humane, and the public has no way of ascertaining whether
that is true. There will be no evidence to the contrary, not necessarily because the
execution was humane but because the paralyzed prisoner appears to be dying
without incident.
	 One journalist who witnessed Arkansas’s execution of Marcel Williams
in April 2017 reported that Williams’s back arched as he breathed deeply and
“sucked in air.”64 The reporter could not tell whether Williams was moaning because the witnesses heard no audio from the execution chamber.65 He also did
not know whether Williams was given another dose of the first drug nor did he
know “when the second drug [the paralytic], which would mask all pain, was
administered” because no announcement was made.66 Because of state secrecy, the
journalist lacked critical information as a witness to know and accurately report
what happened during Williams’s death.67

	 The lack of transparency insulates the conduct of the execution itself from
review and hinders open discussion about the death penalty. The need for witnesses to observe the entire execution process has become increasingly relevant as
untested drug formulas are used and incidents of botched executions rise.

OF THE 17 STATES THAT CARRIED OUT
EXECUTIONS BETWEEN 2011-2018:
•	 14 (or 82%) did not guarantee that witnesses could
view the prisoner during the beginning of the
execution process, including watching the prisoner be
strapped to the gurney or the setting of the IV lines
•	 15 (or 88%) did not guarantee that witnesses could
hear what was happening in the execution chamber
throughout the execution.
•	 17 (or 100%) did not guarantee that witnesses could
see when each drug was being administered.
23

WHAT IS THERE
TO HIDE?
	 States have argued that if they are to carry out executions, they must keep
secret the identities of the people involved in executions and the suppliers of lethal-injection drugs. Experience has shown, however, that states have used secrecy
as a pretext for hiding improper conduct. Secrecy has enabled states to obtain
drugs by any means necessary—sometimes illegally and sometimes in breach of
contract—without checks and balances by legislatures, courts, or the public. States
have used secrecy to avoid accountability for problematic executions, claiming
that crucial information about the execution is confidential. State conduct that
has been uncovered reveals troubling possibilities for what else secrecy laws could
be hiding from public view. Ultimately, state secrecy laws have prevented the public from knowing the extremes to which its state governments are resorting to
carry out the most severe and irreversible punishment.

“Democracies die behind closed doors.
… When government begins closing
doors, it selectively controls information
rightfully belonging to the people.
Selective information is misinformation.“
Judge J. Damon Keith, U.S. Court of Appeals for the
Sixth Circuit68

24 BEHIND THE CURTAIN

Purported Reasons
for Secrecy
“I think the drug maker, if that business is disclosed, they
worry about all the demonstrators that will appear at their
door. So what we’re trying to do is protect them.”
	

North Carolina State Representative Leo Daughtry

		States have refused to provide information on a range of execution-related
topics, including the identities of executioners. But in the guise of protecting
employee confidentiality, states have also refused to provide information on the
qualifications of the members of their execution teams. Officials in Oklahoma
have justified withholding disclosure, claiming that revealing that information
could subject execution team members to public pressure not to participate in
executions.69 Further, states have asserted that there is “no legitimate purpose for
revealing that information beyond embarrassment, harassment, annoyance and
intimidation.”70 This argument, however, ignores the fact that states have been
known to hire unqualified executioners, which, in turn, substantially increases
the risk that an execution will be botched and that a prisoner will experience an
unnecessarily torturous death.

	 States have provided various justifications for their insistence on secrecy
regarding the acquisition of lethal-injection drugs. The predominant theme has
been that if states provide information about a drug source to the public, then
drug companies will choose not to supply drugs for use in executions. In fact,
the secrecy is not intended to protect manufacturers but to prevent them from
learning that their medicines are being diverted from therapeutic uses to use in
executions.	
	 Pfizer—ranked by Forbes in 2016 as the world’s second largest public drug
and biotech company71—publicly banned the use of its products in executions in
May 2016.72 Other companies have expressed similar sentiments, emphasizing
that they make medicines to save and improve the lives of patients and do not
want to provide their products for use in executions.73 As of August 2018, more
than fifty manufacturers of drugs used in lethal injections have taken action to
block their products from being used in executions.74 As Professor Ty Alper has
suggested, “It is difficult to imagine more negative public relations for a drug
company than publicity about the fact that its products are used to kill people.”75

25

	 Far from supporting secrecy policies that purport to protect them, companies
have actively opposed states’ efforts to suppress information about the source of
execution drugs. In July 2017, two pharmaceutical companies, Fresenius Kabi
USA and Sandoz Inc., filed a brief in support of litigation seeking disclosure of
records that Ohio sought to keep confidential under its secrecy statute. In the
court filings, the companies wrote that they “have a keen and important interest
in knowing whether any department of corrections have obtained their drugs
despite and in contravention of their distribution controls and contracts.”76 Both
companies stressed that they have not sought to conceal any records pertaining to
them and further argued that Ohio’s refusal to disclose the manufacturers of its
execution drugs directly undermines their interests and “imped[es] their ability to
preserve the integrity of their contracts.”77

	 The European Union (EU) and some foreign governments have joined
the companies’ efforts, adopting human rights economic regulations that place
restrictions on the exportation of medicines used in capital punishment.78 In
September 2017, 58 countries joined an initiative led by the European Union,
Argentina, and Mongolia to create a global Alliance for Torture-Free Trade to
halt the trade in goods—such as pharmaceuticals—used for capital punishment
and torture.79 After having problems with its manufacturing plant in North Carolina, Hospira—the sole domestic producer of sodium thiopental—decided to
leave the market altogether rather than manufacture the drug in its plant in Italy.
Italian authorities warned Hospira that it faced liability if it sold its products to
the United States for use in executions. Hospira was not willing to take that risk.80
If secrecy had shielded the information from public view, Hospira would not have
been able to accurately assess its risk of liability.
	 In 2012, the German-based global healthcare company Fresenius Kabi objected to the use of its drug propofol in executions after Missouri announced
plans to use that drug in lethal injections. Fresenius Kabi emphasized that the use
of propofol in executions would prevent it from supplying the drug to the United
States because the EU would add it to the list of lethal-injection drugs restricted
from exportation. If Fresenius Kabi could not supply propofol to the U.S., then

“Pfizer makes its products to enhance and save
the lives of the patients we serve. Consistent
with these values, Pfizer strongly objects to
the use of its products as lethal injections for
capital punishment.”
Statement of Pfizer, Inc.81
26 BEHIND THE CURTAIN

there would potentially be “millions of patients at risk,” because propofol is the
“most widely used anaesthesia drug.”82 When Missouri announced its intent to
use propofol, the Business Secretary for the United Kingdom announced plans to
impose export restrictions on the drug, saying: “This country opposes the death
penalty. We are clear that the state should never be complicit in judiciary executions through the use of British drugs in lethal injections.”83 Stating concerns
for protecting public health, Missouri’s governor halted the scheduled propofol
execution and ordered the Department of Corrections to find another drug.84

	 Fresenius Kabi has continued to challenge the use of its drugs in lethal injection.
It filed suit in Nebraska federal court on August 8, 2018, alleging that Nebraska
intended to execute Carey Dean Moore using drugs manufactured by the company
that had been obtained “through improper or illegal means.”85 The lawsuit said
the company’s distribution contracts with authorized wholesalers and distributors
prohibit sales to departments of corrections, and it alleges that Nebraska obtained
the drugs “in contradiction and contravention of the distribution contracts,” most
likely from an unauthorized supplier. Nebraska Attorney General Doug Peterson
said the state’s execution drugs “were purchased lawfully and pursuant to the State
of Nebraska’s duty to carry out lawful capital sentences,” an assertion that cannot
be verified because of the state’s secrecy practices. The state refused to identify
the source of the drugs it used in Moore’s execution, but two of the drugs—the
paralytic, cisatracurium, and the drug used to stop the heart, potassium chloride
—are manufactured by Fresenius Kabi, and only that company made vials of
potassium chloride in the size obtained by the state.86 Fresenius Kabi has been
clear about its frustration with Nebraska’s secrecy laws. Its spokesperson Steffen
Rinas told In-PharmaTechnologist: “because of secrecy laws, we don’t know
with certainty if, or how, the state acquired our products, and the state has not
confirmed it used our products in the execution” of Carey Dean Moore.87

	 Amicus briefs filed in the United States Supreme Court in the 2018 case
of Missouri prisoner Russell Bucklew, further demonstrate the pharmaceutical
industry’s concerns about the diversion of medicines for use in executions. The
Association for Accessible Medicines, a professional association representing generic and biosimilar drug manufacturers and distributors, wrote that its members
“strongly oppose the use of their medicines … to carry out executions.”88 The brief
called such use “medically irresponsible,” and raised concerns about the public
health impacts. Specifically, some of the drugs used in executions are classified as
“essential medicines” by the World Health Organization, and are in short supply,
yet “four states had stockpiled enough of these drugs to treat 11,257 patients—if
the drugs were used as intended for medical treatment rather than in executions.”
Eighteen public health experts warned in their own brief that state actions
evading distribution restrictions and obtaining drugs from unlicensed sources
“undermine[] federal laws that protect the public health, and … circumvent[]
pharmaceutical companies’ ability to ensure the safety and effectiveness of drugs
in the supply chain.”89
27

	 As companies have publicly announced the measures they have taken to prevent their products from being used in executions, states have responded with
secrecy laws, using the threat that death-penalty opponents will pressure companies to refuse to provide execution drugs as a pretext for passing these laws. When
North Carolina adopted its secrecy law, State Representative Leo Daughtry, the
bill’s sponsor, explained: “I think the drug maker, if that business is disclosed,
they worry about all the demonstrators that will appear at their door. So what
we’re trying to do is protect them.”90 The Arkansas Department of Corrections
claimed that secrecy was necessary because “the sellers were concerned about adverse publicity and the loss of business if they were identified as suppliers of drugs
used for executions.”91 Missouri argued that “revealing the information would
prevent the Missouri Department of Corrections from obtaining and testing the
execution chemical, and would expose persons who assist the state in carrying
out executions to harassment, intimidation and harm.”92 The Arizona Attorney
General’s office defended its refusal to provide information about the drug source,
arguing that disclosure would “deter drug manufacturers from providing lethal
injection drugs.”93 The co-sponsor of Ohio’s secrecy bill stressed the need for the
law because “many manufacturers—from whom the state had purchased [drugs]
for many years—have stopped selling drug compounds for this purpose.”94 He
claimed the names of companies need to remain secret to protect companies that
“fear … public reprisal.”95 The Oklahoma Attorney General explained that the
state passed its secrecy law “because [execution] participants have a privacy interest in not being subjected to public scrutiny based on their involvement in an
event that engenders so much controversy.”96
	 Some courts have accepted the states’ arguments without supporting evidence.
Other judges have criticized allowing states to hide information from the public

“The fact that some drug providers may be
subject to harassment and/or public ridicule
and the fact that authorities may find it
more difficult to obtain drugs for use in
executions are insufficient reasons to forgo
constitutional processes in favor of secrecy,
especially when the state is carrying out the
ultimate punishment.”
Justice Robert Benham, Georgia Supreme Court97

28 BEHIND THE CURTAIN

just because drug suppliers would face public scrutiny for their actions. Two
justices on the Georgia Supreme Court flatly rejected the state’s argument for secrecy, declaring: “The fact that some drug providers may be subject to harassment
and/or public ridicule and the fact that authorities may find it more difficult to
obtain drugs for use in executions are insufficient reasons to forgo constitutional
processes in favor of secrecy, especially when the state is carrying out the ultimate
punishment.”98 Though later reversed, a panel of the U.S. Court of Appeals for
the Ninth Circuit rejected Arizona’s argument for secrecy about the source of its
lethal-injection drugs, noting that it “ignores the ongoing and intensifying debate
over lethal injection in this country, and the importance of providing specific and
detailed information about how safely and reliably the death penalty is administered.”99 The Arkansas Supreme Court found unpersuasive the state’s argument
that disclosure of the drug manufacturer would prevent it from being able to
carry out death sentences, observing that “many manufacturers of lethal-injection
drugs already prohibit the use of these drugs in executions.”100 The court ruled
that the state must provide the public with information about the manufacturer
of the lethal-injection drugs the state obtains for use in executions.101 	

“The Associated Press could find no evidence
that any such investigations [of threats to
pharmacies] are underway in Texas, and police
in the community where one such pharmacy is
located said they are not concerned.”102
	 States have also argued that secrecy is needed to protect their drug sources from harassment or even potential physical harm. A federal district court
ordered the Arizona Department of Corrections to disclose the source of its
execution drug after finding that the state presented no evidence that potential “calls and letters would prevent a corporation from operating or would be
sufficiently disruptive to force them to refuse to sell its product” to the prison.103
The court stressed that the manufacturer actually chose to stop providing the
drug for executions “because it ‘adamantly opposed the distressing misuse of
[the] product in capital punishment’—not because it feared a public backlash.”104

	 Some courts have refused to accept—without specific evidence—the state’s
argument that secrecy is needed to protect lethal-injection drug suppliers from
physical harm. For example, Texas claimed that their drug sources would be subject to physical assaults if their identity were revealed to the public.105 A Texas
appeals court rejected the state’s assertion that it had shown a substantial threat
29

of physical harm to the source if the execution drug were revealed and held that
the state had to provide drug-source information to the public. Likewise, a news
report contradicted Texas’s allegations that drug sources were being threatened
with violence. “The Associated Press could find no evidence that any such investigations [of threats to pharmacies] are underway in Texas, and police in the
community where one such pharmacy is located said they are not concerned.”106

	 In lethal-injection litigation in September 2018, attorneys for the State of
Tennessee refused to provide information on their efforts to obtain execution
drugs but conceded that there was no evidence death-penalty opponents had attempted to impede sales of drugs to the state.107 A 2016 investigation into claims
by Oklahoma officials that their supplier had been threatened also revealed that
the state’s allegations were highly exaggerated.108 The alleged threat against a Tulsa
pharmacy called the Apothecary Shoppe turned out to be nothing more than an
email sent to the pharmacy by a retired college professor who used his own name
and provided his telephone number. The professor characterized his email as simply advice to the pharmacy to be cautious. After this communication occurred,
Ohio and Texas hired an expert who characterized this email as a “serious threat”
against the pharmacy that justified the need for secrecy because it supposedly had
caused the FBI to launch an investigation. Records from both the FBI and the
Tulsa Police Department, however, showed that neither agency had been aware
of any supposed threats against the pharmacy until a reporter called months later
to ask about them. The pharmacy never filed any complaint about the email and
did not come forward with copies of any threatening emails after investigators
provided an opportunity to do so.109
	 In addition to exaggerating threats as justification for secrecy, states have also
made misrepresentations to courts to prevent disclosure of information on their
execution processes. For example, in Glossip v. Gross (2015), the U.S. Supreme
Court case challenging the drug formula selected by Oklahoma for lethal injections, then-Oklahoma Attorney General Scott Pruitt told the Court that the
state’s drug supplier “came under intense pressure from death penalty opponents
to cease compounding pentobarbital for use in executions, and subsequently
declined to continue supplying the drug to Oklahoma.”110 Interpreting its state
secrecy law broadly, Oklahoma submitted to the Court a heavily redacted copy of
a letter with the names of both the pharmacy and the department of corrections
blacked out.111 Pruitt’s statement, however, completely misrepresented the facts.
The letter, which Arizona state attorneys submitted unredacted in another court112,
was written from Woodlands Compounding Pharmacy to the Texas Department
of Criminal Justice (TDCJ)—not Oklahoma. Because of this and other factual
inaccuracies, Justice Sotomayor excoriated the state’s attorney at argument, telling
him “nothing you say or read to me am I going to believe, frankly, until I see it
with my own eyes [in] context, okay?”113

30 BEHIND THE CURTAIN

LETTER SUBMITTED BY OKLAHOMA

UNREDACTED LETTER

31

Setting Aside the Veil:
UNCOVERING INCOMPETENCE,
ILLEGALITY, AND DECEPTION

	 In many cases, the public will never know the full extent of state officials’
actions because they are shielded by secrecy laws. However, protracted litigation
and extraordinary investigations have provided glimpses into disturbing conduct
by state officials in procuring the drugs for, overseeing, and carrying out executions. This conduct has included:
	 •		Hiring a physician-executioner who has been sued for malpractice at 	
				least 20 times, has been barred from practicing at two hospitals, and 	
				whose failure to use a written protocol, coupled with his dyslexia, 		
				resulted in him administering the wrong amounts of drugs;
	 •		Illegally importing drugs from a sham pharmacy operating out of a 		
				London store-front labeled “driving academy”;
	 •		Purchasing drugs from a supplier in India who had obtained free
				samples of the medicine under the false pretense that he would use 		
			them for medical purposes in Zambia;
	 •		Buying drugs from a compounding pharmacy that committed more
				than 1800 violations of state health and safety guidelines and which
				the FDA found had “questionable potency, disinfecting and
				sterilization practices”;

	 •		Obtaining execution drugs from a local hospital by misrepresenting that 	
				the medication was needed for a “medical patient.”

	 Although litigation and state investigations have uncovered numerous
examples of misconduct, they are no substitute for routinely making execution-related information available to the public. Other misconduct has surely gone
undiscovered. Increasingly strict secrecy laws continue to thwart efforts to
uncover the truth, suggesting that there is even more to hide.

32 BEHIND THE CURTAIN

The Incompetent
Physician-Executioner
	 In 2007, stung by disclosure of embarrassing information about its long-time
physician-executioner, Missouri pioneered the use of secrecy to prevent public
oversight. The “Show Me” state had employed a doctor with dubious credentials
to conduct more than fifty lethal-injection executions. Alan Doerhoff had been
sued for malpractice more than twenty times, barred from practicing at two hospitals, publicly reprimanded by the state Board of Healing Arts, and had been
caught making false statements in two court cases. Suffering from dyslexia, he
sometimes confused drug names when conducting executions and would improvise drug dosage. He followed no written protocol and kept no records.114 After
these facts came to light in a lawsuit brought by Missouri’s death-row prisoners, a
federal judge ordered that Doerhoff no longer “participate in any manner, at any
level in the State of Missouri’s lethal injection process.”115

	 Missouri legislators responded to media attention and public criticism concerning the state’s use of a clearly unqualified execution doctor not by enacting
reforms, but by prohibiting disclosure of the identities of the execution team.
Missouri’s law even created a civil cause of action subjecting anyone who disclosed
execution team members’ identities to damages. At least two other states (Ohio
and South Carolina) have included civil liability provisions in their secrecy laws.
33

South Dakota’s secrecy law goes even further, making disclosure of execution-related information a crime punishable by up to one year of imprisonment and a
$2,000 fine. 	

	 Since Missouri initially adopted its secrecy law in 2007, it has expanded the
scope of the law by redefining what constitutes membership on the execution
team. In 2013, attempting to shield the identity of its drug supplier, Missouri
expanded the definition of “execution team” in its execution protocol to include
suppliers of lethal chemicals.116 As a result, in Missouri, the public cannot know
who has been awarded public contracts to supply execution drugs to the state.

“When jurisdictions are permitted to operate
in secrecy, the courts, legislatures, and the
public cannot provide critical oversight
to guard against the use of risky and
experimental drug protocols and untrained
and unqualified execution team members.”
Report to the House of Delegates of the American Bar Association
on Lethal Injection Secrecy Resolution117

34 BEHIND THE CURTAIN

Illegal Importation
of Drugs
	 In 2009, the pharmaceutical company Hospira—the only U.S. drug company
that manufactured sodium thiopental—experienced manufacturing problems at
one of its plants, causing a shortage of the first drug used in states’ three-drug
lethal injection protocols. The public first learned of the shortage when, only days
before a scheduled May 2010 execution, an attorney representing Ohio informed
a federal district court that the state was unsure if it would be able to secure the
drug.118 Hospira’s production problems triggered a series of events that culminated in a company decision to stop manufacturing the drug. With their source of
sodium thiopental unavailable, states had to look elsewhere for lethal-injection
drugs. As they did so, states began to hide these efforts from the public.

	 With no domestic source of sodium thiopental available, states looked
for sources abroad.119 In attempting to import lethal-injection drugs, states
clandestinely turned to sources with questionable facilities and dubious
reputations, violating federal laws in the process. Attempts to conceal these
actions from the public failed when two federal agencies—the Food & Drug
Administration (FDA) and the Drug Enforcement Agency (DEA)—began
investigating the importation of
controlled substances for unapproved
non-medical purposes in potential
violation of federal law.
	 In September 2010, the Arizona
Department of Corrections received
a tip from the Arkansas Department
of Corrections about a London-based
drug wholesaler that was willing to
supply execution drugs. Arkansas
had, in turn, learned of the wholesaler through a referral from Georgia.120
The wholesaler, Dream Pharma,
Ltd. (pictured right), was no normal
pharmaceutical distributor. As press
reports disclosed, it “operat[ed] out
of a storefront driving school in west
London.”121 Arizona officials knew Dream Pharma was a potentially problematic
source. Before the state purchased the drugs from the company, a senior pharmacist consultant told state officials that Dream Pharma’s website “leaves something

35

to be desired” and she questioned whether the company was a “reputable” drug
source. She also informed Arizona officials of a “gray” market in the pharmaceutical industry” and said that it was “pretty likely” that Dream Pharma’s drug was
not approved by the FDA. Ignoring these warnings, Arizona ordered execution
drugs from Dream Pharma.122

	 In October 2010, just days before Arizona was scheduled to execute Jeff
Landrigan, his attorneys learned that the state would be using imported drugs in
his execution. But Arizona refused to provide Landrigan with any information
about the drugs, so he knew only that the drug had not been manufactured in the
United States and, therefore, had not been approved by the FDA. Based on this
limited information, Landrigan filed a challenge in federal court raising concerns
about the legality of executing him with gray-market drugs imported from a nonFDA approved supplier. The court ordered Arizona to provide information about
the source of the drug, but the state refused. The federal judge was perplexed,
saying she had “never experienced a situation such as this where a defendant opposes a motion for emergency relief by claiming it has the evidence necessary for
resolution of the matter but that evidence should not be produced.”123 The state
appealed the district court’s order, but because Landrigan had no information
about the drugs, the U.S. Supreme Court allowed his execution to go forward.124
Landrigan’s attorneys later discovered that he had been executed with drugs illegally imported from Dream Pharma.

	 Between 2010 and early 2011, at least eight other states illegally imported
sodium thiopental from overseas, and the DEA intervened to halt the practice.
STATES WHERE
FEDERAL AGENCIES
TOOK ACTION ABOUT
ILLEGALLY-IMPORTED
EXECUTION DRUGS

36 BEHIND THE CURTAIN

In 2011, the DEA seized thiopental from Alabama, Georgia, Kentucky, South
Carolina, and Tennessee. Following a court decision, the FDA sent letters to Arizona, Arkansas, California, Georgia, Nebraska, South Carolina, South Dakota,
and Tennessee requesting that the states relinquish the illegally-obtained drugs.125
Subsequently, a federal appeals court ruled that the drugs had been imported into
the United States in violation of federal law but, due to a procedural issue, allowed states to keep the drugs already in their possession.126 Because there was no
way importation of these drugs could have complied with federal regulations, the
court determined that the FDA should have taken action preventing the drugs
from entering the country. Despite this express federal court determination, states
continued to order sodium thiopental from overseas.

	 Dream Pharma has not been the only overseas supplier of execution drugs.
In 2010, before most states implemented drug-source secrecy laws, a public-records request yielded information that Kayem Pharmaceuticals, based in India,
had supplied sodium thiopental to Louisiana and Nebraska for only $2 per vial.
The owner of Kayem, however, said he did not “want to be an accessory to state
sponsored killing” and accused the state officials of having concealed the intended use of the drugs.127 So when South Dakota corrections officials approached
Kayem for execution drugs, the owner raised his price to $20 per vial, hoping the
increased cost would dissuade the state from buying the drugs. The price hike did
not work, and Kayem shipped 500 vials of sodium thiopental to South Dakota.
Because of federal regulations, however, South Dakota never used the drugs.128

	 One of Kayem’s employees, Chris Harris, left the company and became an execution-drug supplier to several states. Harris had no pharmaceutical background
and listed as his business address an apartment that he had abandoned years prior,
having failed to pay months of rent and electricity bills.129 Harris had obtained
free samples of sodium thiopental from a Swiss company, Naari, under the pretext
of registering the anesthetic in Zambia. Instead, he sold the free samples of the
drug to Nebraska for $5,400.130 Naari CEO Prithi Kochhar was shocked when he
learned the medicine had been sold for use in executions. In a letter to the Chief
Justice of the Nebraska Supreme Court, Kochhar said: “Mr. Harris misappropriated our medicines and diverted them from their intended purpose and use.”131
Kochhar told the court that Naari is “deeply opposed to the use of medicines in
executions.”132
	 In later execution-drug transactions, Harris required states to place a minimum purchase order of 1,000 vials and charged a rate that was seven times the
market price for the drug. As a result, state taxpayers paid Harris tens of thousands
of dollars for drugs that, it turns out, would never be used. In 2015, Nebraska paid
Harris $54,000 for 1,000 vials of sodium thiopental and 1,000 vials of pancuronium bromide (a paralytic). Nebraska was not alone in purchasing from Harris.
Arizona paid Harris nearly $27,000 for 1,000 vials of sodium thiopental. Texas
also imported sodium thiopental at the same time as Arizona, and while it is

37

widely believed that those drugs were purchased from Harris, the source of Texas’s
1,000 vials of drugs has not been confirmed.133

	 Nebraska never received its execution drugs. Harris shipped them via FedEx,
but citing the absence of paperwork permitting their importation to the United
States, the carrier refused to deliver them and returned the drugs to their sender. The drugs never left India, and Nebraska unsuccessfully tried to recoup its
payment.134 When Nebraska executed Carey Dean Moore on August 14, 2018,
after a 20-year execution hiatus, it still had not received the drugs ordered from
Harris and used an experimental drug combination instead. The state did not
reveal the supplier of the drugs used in Moore’s execution, but Fresenius Kabi,
which manufactures two of the drugs, sued Nebraska, alleging that the state had
purchased its products “through improper or illegal means.”135
	 Arizona’s and Texas’s shipments of sodium thiopental arrived in the United
States, but the FDA seized the shipments at airports in Phoenix and Houston.136
Texas and Arizona informally attempted to persuade the FDA to release the drugs
from detention.137 When those efforts failed, Texas sued the FDA in hopes of
obtaining the drugs. Instead, the FDA issued a final order in April 2017 notifying
prison officials that the shipments had been imported in violation of federal law
and would not be released.138

38 BEHIND THE CURTAIN

Compounding
Pharmacies with
Questionable
Practices
	 States also have turned to compounding pharmacies when the execution drugs
they sought were unavailable from major pharmaceutical manufacturers. Compounding pharmacies service patients who need drugs that cannot be supplied by
a mass-manufactured product; the pharmacist, acting per a prescription, creates
medication specifically tailored for a particular patient. A patient may need the
assistance of a compounding pharmacist if, for example, she cannot swallow a
mass-produced medicine in pill form and needs the medicine specially produced
as a liquid, or if she has drug allergies or suffers from a rare illness for which
mass production of a drug is cost prohibitive. Compounding pharmacies usually
mix small amounts of drugs when filling an individual’s prescription. Because the
drugs produced by these pharmacies are customized, the FDA “does not verify the
safety or effectiveness of compounded drugs.”139
	 The use of compounding pharmacies for lethal-injection drugs has raised many
concerns, including the health and safety record of the compounder, the quality
and efficacy of the drugs, the companies’ (and states’) refrigeration, storage, and
transport practices, and the legality of a compounding pharmacist producing drugs
without a valid medical prescription for the treatment of an individual patient.140
Three key examples—one from Georgia and two from Missouri—highlight the
problems that arise when states use compounding pharmacies behind the veil of
secrecy laws.

	 On March 2, 2015, Georgia was scheduled to execute Kelly Gissendaner.
Hours after the execution was set to begin, however, the state called it off because the lethal-injection drugs manufactured and supplied by an anonymous
compounding pharmacy were “cloudy.”141 Georgia law classifies information
about the manufacturer, compounder, or supplier of lethal-injection drugs as a
“confidential state secret.”142 Because of this strict secrecy law, the public knew
virtually nothing about the drug, including where and how it was compounded,
transported, and stored. Georgia officials maintained that nothing was wrong
with either the drugs or their supplier but suggested they may have been stored at
too cold a temperature. The state said it was in the process of conducting a study
of the problem and would make the results public. It did not. After Gissendaner
39

sued, the state disclosed a video of the drugs showing particles that looked like
“clumps of cottage cheese floating in the solution,” and the state’s own expert said
that the drug could have been prepared improperly by the pharmacy.143 No known
corrective measures were undertaken to ensure that future execution drugs were
not contaminated.

	 The aborted Gissendaner execution illustrates the need for public oversight
and the importance of an independent review of the execution process when
something goes wrong. Missouri provides insight into a range of other problems
that can—and do—occur behind the scenes. Missouri amended its lethal-injection policy in 2013 to prevent disclosure of the identity of its drug supplier. It was
only through diligent investigations by reporters who pieced together information
from a variety of sources that the public learned of the reckless practices of two
different compounding pharmacies that provided lethal drugs to Missouri.

	 The Apothecary Shoppe sold Missouri more than $30,000 worth of drugs
that were used in three executions.144
The Oklahoma-based company was not
licensed to do business in Missouri, and
its interstate sale of controlled substances without a valid prescription may have
violated both Missouri and federal law.
To hide the state’s dealings with the
Apothecary Shoppe, an official of the
Missouri Department of Corrections
drove to Oklahoma with an envelope
containing $11,000 in cash, gave the
money to a contact from the Apothecary
Shoppe, and returned to Missouri with
145
the drugs in hand. The failure to report cash payments may have also violated
federal law: cash payments of $10,000 or more require notification to the Treasury Department’s Financial Crimes Enforcement Network. To evade disclosure,
Missouri also failed to file the required 1099 tax form with the Internal Revenue
Service (IRS). The Apothecary Shoppe has not disclosed whether it paid taxes on
the cash income it received.146
		After the Apothecary Shoppe provided drugs to Missouri, the FDA and
Oklahoma Board of Pharmacy conducted routine inspections of the compounding pharmacy. The investigation revealed 1,892 violations of state guidelines, and
the FDA found “questionable potency, disinfecting and sterilization practices.” In
addition, inspectors noted that the employees would arbitrarily extend expiration
dates on drugs without proper testing or documentation and would store drugs
in a blue Igloo cooler rather than putting them in the proper refrigeration unit
simply because the refrigerator was located in a different room.147

40 BEHIND THE CURTAIN

	 After journalists discovered and reported Missouri’s use of the Apothecary
Shoppe, the state switched to another compounding pharmacy to obtain execution drugs. That pharmacy, Foundation Care, also had repeated health violations
so serious that the FDA labeled the company as “high risk” and cited it as an
example of the need for greater federal oversight of compounders.148

	 Foundation Care first came to the attention of FDA investigators in 2007
when a doctor complained to the agency that a patient he was treating had developed “a ‘life threatening’ illness” after taking a drug prepared by the pharmacy.
At that time, the FDA investigators found that the pharmacy had shipped drugs
to patients without conducting tests for sterility and bacteria, and a lab sample
revealed drugs that had been contaminated with bacteria. A 2013 inspection
found “multiple examples” of practices that could lead to contamination and that
Foundation Care had failed to “assure that drug products conform to appropriate
standards of identity, strength, quality and purity.” In a February 2014 letter to
the Missouri Board of Pharmacy, the FDA warned that the pharmacy’s practices
“could lead to contamination of drugs, potentially putting patients at risk.”149

	 The possibility of drug contamination has been one of the centerpieces of
challenges to Missouri’s execution process, and experts have indicated that contamination could create an unconstitutional risk of pain and suffering. However,
in a deposition in the Missouri prisoners’ legal challenge, state officials refused
to say whether they were aware of any problems with their drug supplier. At
the same time that Missouri’s drug supplier was violating health and safety
regulations related to contamination, state attorneys were affirmatively using
Missouri’s secrecy provisions to deny prisoners access to information about the
state’s drug supplier and the supplier’s safety record. This allowed state prosecutors
to argue to the court that the prisoners had not met their burden of proving that
Missouri executions may be unconstitutionally cruel. Only after an in-depth exposé by investigative journalist Chris McDaniel did the public learn that Missouri
used drugs from Foundation Care to conduct seventeen executions between 2014
and 2017.150

41

Misrepresenting
Facts to Obtain Drugs
	 Under false pretenses, states have obtained drugs for lethal injections from
drug manufacturers, medical-care providers, and drug distributors that have made
clear that they do not want to be involved in executions. Through secrecy and
dishonesty, states have acted in bad faith to circumvent the non-distribution policies of pharmaceutical manufacturers, inducing or misleading drug resellers into
breaching drug-distribution contracts.

	 A lawsuit filed by Texas death-row prisoners in 2013 alleged that the Texas
Department of Criminal Justice (TDCJ) had obtained execution drugs under
false pretenses. The lawsuit claimed that TDCJ purchased the drugs propofol,
midazolam, and hydromorphone from an out-of-state pharmacy instructing that
the drugs be delivered to the “Huntsville Unit Hospital,” a medical facility that
had been closed thirty years earlier.151 The state also attempted to purchase compounded pentobarbital from the pharmacy with a prescription written in the
name of Huntsville’s warden. The pharmacy reportedly cancelled that order—
which also was to be delivered to the defunct “Huntsville Unit Hospital”—after
discovering that the TDCJ ordered the drugs intending to use them to execute
prisoners.152

	 Similarly, in 2013, the Ohio Department of Rehabilitation and Correction
(ODRC) misled its supplier about the ultimate destination of the drugs it intended to use in executions. Rather than risk the McKesson Corporation—one
of the nation’s largest pharmaceutical distributors—refusing to sell medicines
to Ohio prisons, the state arranged for the purchase to be made by the Ohio
Pharmacy Service Center—part of the state’s mental-health agency. In turn,

“When you call them to see if they will sell
[pentobarbital] to us make sure you say we
are the Department of Mental Health do
not mention anything about corrections in
the phone call or what we use the drug for.”
Excerpt from July 2011 e-mail from Ohio official153
42 BEHIND THE CURTAIN

the Pharmacy Service Center diverted the medicines to ODRC to be used for
lethal injection.154

		In Louisiana, one week in advance of a scheduled execution in January 2014,
the Department of Corrections needed hydrocodone—one of the drugs in its
lethal-injection protocol. Falsely claiming that the medication was needed for
a “medical patient,” the Department obtained hydrocodone from a pharmacy at
Lake Charles Memorial Hospital.155 The hospital had provided the state prison
system with medicines for patient care in the past and believed that was what it
was doing again. A hospital board member reacted with dismay when he learned
of the state’s deceit: “At no time was Memorial told the drug would be used for an
execution,”156 he said. If the hospital had “known of the real use, we never would
have done it.”157
	 In January 2017, a filing error exposed the contents of a sealed transcript in a
Missouri lethal-injection case. As a result, the media learned that Missouri had
been using lethal-injection drugs manufactured by the pharmaceutical company
Akorn Pharmaceuticals. But in 2015, Akorn had publicly announced its opposition to the use of its products in executions and had implemented distribution
restrictions to prevent departments of corrections from obtaining its products.158
Through secrecy, Missouri evaded Akorn’s distribution controls and purchased
pentobarbital for use in executions.

	 In late February 2017, Arkansas Governor Asa Hutchinson scheduled eight
lethal-injection executions to occur over a span of eleven days that April. State
officials attempted to justify the unprecedented schedule by saying that one of
its drugs would expire on April 30.159 Those executions raised objections from
drug-distributor McKesson Corporation, which had sold vecuronium bromide
manufactured by Pfizer to Arkansas “under the auspices that it would be used
for medical purposes.”160 Within days of shipping the drug, however, McKesson
learned that the vecuronium bromide was sold to a facility carrying out executions.161 Arkansas refused McKesson’s repeated requests that the state return the
drug shipment.162 Days before the scheduled executions, left with no other alternative, McKesson sued the state alleging that Arkansas was fully aware that
Pfizer did not permit the use of its products in executions and deliberately withheld from McKesson that it intended to use the drug for lethal injection.163 The
drugs were not returned, and Arkansas carried out four executions using products
manufactured by Pfizer and distributed by McKesson in breach of its distribution
contract.164
	 Later in the year, on October 6, 2017, Arkansas openly claimed that its secrecy
law had been designed to prevent pharmaceutical manufacturers and distributors
from identifying breaches in their controls and taking legal action to recover their
medicines. In a court filing, the state wrote that secrecy was necessary to prevent
companies from “interject[ing] themselves into litigation in an effort to halt the
State’s use of their drugs for capital punishment” and “implement[ing] even more
distribution controls.”165

43

	 In 2018, the drug company, Alvogen, sued Nevada after learning that the
state had obtained midazolam from one of its distributors. Alvogen alleged that
Nevada had used “subterfuge” and “intentionally defrauded Alvogen’s distributor” to obtain the drug. To further the ruse that the drugs were being purchased
for therapeutic purposes, Alvogen said, the state had the drug shipped to a state
office several hundred miles from the prison.166 Based on these allegations, Clark
County District Judge Elizabeth Gonzalez stayed the execution of Scott Dozier
and later issued a preliminary injunction barring the state from using its supply of
that drug in carrying out any execution.167 After hearing testimony on the issues,
Judge Gonzalez found that the Nevada Department of Corrections had acted in
“bad faith” to obtain the drug through “subterfuge.”168 The judge determined that
both Nevada’s prison director, James Dzurenda, and its prison pharmacy director,
Linda Fox, knew when they bought Alvogen’s drugs that the company “objected
to their use in lethal injection and that they had controls in place to prevent sales
for such use…. Indeed,” Judge Gonzalez wrote, “when purchasing the Alvogen
Midazolam Product, Fox’s response to Alvogen’s objections was ‘Oh shit.’ She
then asked Mr. Dzurenda if he would like her to order more [midazolam] because
she was ‘certain once it’s in the press that we got it [she] will be cut off.’”

“States have circumvented this carefully
and extensively regulated supply chain to
acquire drugs for use in lethal injection.
They use overseas sellers, unlicensed
middlemen, and secret compounding
pharmacies. The result is twofold: it
undermines federal laws that protect
the public health, and it circumvents
pharmaceutical companies’ ability to
ensure the safety and effectiveness of
drugs in the supply chain.”
Amicus Brief of Pharmacy, Medicine, and Health Policy
Experts in Bucklew v. Precythe169

44 BEHIND THE CURTAIN

Swapping Drugs and
Paying Cash for Drugs
	 In further efforts to conceal their execution-related activity, some states have
paid for lethal-injection-related services in non-traditional ways to avoid creating
purchase orders and to hide payment transactions. Cumulatively, Missouri has
paid its executioners more than $200,000 in cash, placing hundred-dollar bills
in envelopes with instructions not to open until services are completed.170 As
with its payments to pharmacies for lethal-injection drugs, Missouri did not file
1099 forms with the IRS for its payments to executioners. Arizona also paid its
physician-executioner in cash—an amount totaling more than $100,000 for five
executions.171 Oklahoma hid its acquisition of lethal drugs by taking money from
a petty cash account it used for purchasing bus tickets for released prisoners.172
	 States also have swapped drugs with each other, surreptitiously transporting
controlled substances across state lines. Arkansas has served as a lethal-injection
drug supplier to multiple states—including Oklahoma, Mississippi, and Tennessee—without payment and apparently as a gesture of good will.173 In turn, Arkansas has received drugs from both Texas and Tennessee.174 Arkansas Department
of Corrections Director Wendy Kelley admitted to receiving drugs in a parking
lot from an anonymous supplier. According to Kelley, the anonymous supplier
“donated” the products after she informed them that payment would have to be
processed through another department.175
	 In another instance, California corrections officers drove to
Arizona to pick up twelve grams
of sodium thiopental. In an unintentional excursion into irony,
a thank-you email sent from a
California correctional official to
his Arizona counterpart said, “You
guys in AZ are life savers. By [sic]
you a beer next time I get that
way.”176 In 2015, Texas provided
Virginia the necessary drugs to
carry out the execution of Alfredo
Prieto. Texas was repaying a favor
to Virginia, which had provided
Texas with the lethal-injection
drug pentobarbital in 2013.177

45

THE COST OF SECRECY: AN ACCOUNT FROM OKLAHOMA

THE COST OF
SECRECY:

AN ACCOUNT FROM OKLAHOMA
	 In 2015, the year after the 43-minute
botched execution of Clayton Lockett,
the U.S. Supreme Court agreed to review a case challenging Oklahoma’s
lethal-injection protocol. In Glossip v.
Gross, the Supreme Court considered
whether the condemned prisoners
had presented sufficient evidence to
establish that the manner by which
Oklahoma intended to execute them
constituted cruel and unusual punishment. Oklahoma’s execution protocol
used the drug midazolam—a drug that
has now been implicated in problematic executions in at least five states.
The prisoners argued that using midazolam in a three-drug formula would
not anesthetize the prisoner sufficiently to prevent him from experiencing
the suffocation or searing pain known
to be caused by the second and third
drugs. The prisoners lost in both the
Oklahoma federal district court and
the federal appeals court. Over a
strongly written four-justice dissent, a
bare majority of five justices ruled in
favor of the State, giving deference to
the lower court’s findings.178 But execution-related problems continued to

46 BEHIND THE CURTAIN

plague Oklahoma even after its win in
the Supreme Court.

	 While the Glossip case was pending in the Supreme Court, Oklahoma
executed Charles Warner in January
2015—using the wrong drug.179 As
Warner was being executed, he said,
“My body is on fire.”180 Had the state
provided copies of the drug labels or
purchase orders to the public prior
to the execution, this mistake likely
would have been prevented. Certainly, Warner’s lawyers would have
noticed the error. Later that same year,
in September 2015, Oklahoma was
minutes away from executing Richard
Glossip when corrections personnel
discovered they had, once again, obtained the wrong drug. Even so, legal
counsel for the Oklahoma Governor
Mary Fallin pushed for the execution
to go forward. Glossip’s execution was
eventually stayed, the Oklahoma Attorney General ordered a grand-jury
investigation into the circumstances of
both Warner’s execution and Glossip’s
attempted execution, and all executions were put on hold.181

THE COST OF SECRECY: AN ACCOUNT FROM OKLAHOMA

	 After spending eight months investigating, the grand jury issued a scathing
report in May 2016 finding serious problems at every stage of Oklahoma’s execution process. The grand jury reported
that Department of Corrections staff and
others participating in the execution process “failed to perform their duties with
the precision and attention to detail the
exercise of state authority in such cases
demands.”182 The report called the state
actors negligent, careless, and in some
instances, even reckless.183 The grand
jury recognized the toxic consequences
of Oklahoma’s obsession with secrecy.
Its investigation, the report said, “revealed that the paranoia of identifying
participants clouded the Department’s
judgment and caused administrators to
blatantly violate their own policies.”184

	 Among the disturbing facts uncovered by the grand jury were that corrections officials failed to obtain the correct
drug licenses and failed to order the drug
specified in the protocol not once, but
twice. Even though it knew that both federal and state law imposed registration
requirements as a precondition to legally
possessing and/or storing execution-related drugs in advance of an execution,
the Department of Corrections nonetheless failed to register with either the DEA
or the Oklahoma Bureau of Narcotics
and Dangerous Drugs.185 Moreover,
according to the report, the pharmacist
who ordered the drugs for the state was
unaware until only thirty minutes before
Glossip’s scheduled execution that he

had ordered the wrong drug.186 In fact,
the same wrong drug had been used in
Warner’s execution, and as the grand-jury
investigation found, the execution team
member responsible for ensuring that
the proper drugs are administered was
clueless as to how that happened. His
only explanation was that this had been
his “first foray into this very unusual world
of executions,” and because his “anxiety
level was significant,” he “totally dropped
the ball.”187
	 The Oklahoma grand jury made a
number of specific findings on how the
Department’s “paranoia” about secrecy
had “clouded the Department’s judgment.”188 It wrote:
	 ue to these [confidentiality] conD
cerns, there was no written order
for the drugs, and the Pharmacist
did not receive a hardcopy of the
Protocol until after ordering the
drugs. Large cash payments were
made to the physician and EMT
who assisted in the process. Cash
was used to pay for the drugs. No
formal invoice was obtained for
the drugs. The Inspector General
did not include the drug names
on the chain of custody form. The
drugs bypassed security in an
unmarked box with no inventory
included when entering the prison. The individual conducting the
Quality Assurance Review did not
have access to participants’ names
to verify their credentials.189

47

THE COST OF SECRECY: AN ACCOUNT FROM OKLAHOMA

	 As the governor’s deputy general
counsel testified, “[W]hen you say completely hidden and state government
in the same sentence, you’ve got a
problem.”190

	 Worse yet, the public may never have
known of the state’s ineptitude in properly carrying out executions if it had been
up to the governor. When, immediately
before Richard Glossip’s execution, the
prison discovered it had once again received a drug that was not authorized under its execution protocol, Steve Mullins,
the governor’s general counsel, “argued
heavily against publically disclosing that
the wrong drug was used.”191 Instead,
Mullins urged that the state move forward
with an execution that clearly violated
the Department’s own procedures. The
grand jury found that Mullins “flippantly
and recklessly disregard[ed] the written
Protocol and the rights of Richard Glossip.”192 Left to counsel’s devices, Glossip
would have been illegally executed,
and the public would have been left in
the dark, never knowing that the wrong
drug had been used in his and Warner’s
executions.

48 BEHIND THE CURTAIN

“[W]hen you say
completely hidden and
state government in the
same sentence, you’ve
got a problem.”
Deputy General Counsel to the
Governor of Oklahoma193

EVOLVING
STANDARDS OF
DECENCY
“The constitutionality of the death penalty turns, as I have
urged, on the opinion of an informed citizenry.”
	

U.S. Supreme Court Justice Thurgood Marshall

	 In determining the constitutionality of death-penalty practices under the
Eighth Amendment, the courts look to “evolving standards of decency.”194 These
standards are designed to measure what American society will tolerate when it
comes to punishments. When drug companies choose not to supply their products for executions, what does that say about society’s tolerance for capital punishment? When the drugs necessary to ensure the most humane executions are
unavailable to prisons, what does that mean for the constitutionality of the death
penalty? When prisoners are unable to prove that alternative execution methods
or drug formulas are available because states have concealed this execution information from the public, what should be the result? The U.S. Supreme Court faced
each of these questions in 2015 in Glossip v. Gross.

	In Glossip, the Court was called upon to decide whether a condemned prisoner
had to present a readily available, alternative way for the state to execute him as a
precondition to proving that a state’s intended lethal-injection formula is unconstitutionally cruel and unusual. During oral argument, the justices grappled with
the degree to which it should consider pharmaceutical companies’ unwillingness
to supply their products for use in executions. Justice Samuel Alito rhetorically wondered whether it was “appropriate for the judiciary to countenance what
amounts to a guerilla war against the death penalty which consists of efforts to
make it impossible for the States to obtain drugs that could be used to carry out
capital punishment with little, if any, pain?”195 Justice Antonin Scalia said that he
“would be more inclined to find that it was intolerable if there was even some
doubt about this drug [that prisoners challenged] when there was a perfectly safe
other drug available.”196 These statements suggested that whether an execution is
cruel and unusual is a matter of equity: the prisoners, the justices asserted, were
responsible for the drug unavailability and, as a result, they were in no position
to complain about experiencing more pain when “better” drugs were no longer
available to the state.

49

“Petitioners here had no part in creating
the shortage of execution drugs; it is
odd to punish them for the actions of
pharmaceutical companies and others
who seek to disassociate themselves
from the death penalty—actions which
are, of course, wholly lawful.”
U.S. Supreme Court Justice Sonia Sotomayor197
	 In stark contrast, Justice Stephen Breyer, addressing prisoners’ counsel, said:
“Perhaps there is that larger question, that if, in fact, for whatever set of reasons,
it’s not you, you didn’t purposely hide these other kinds of drugs, if there is no
method of executing a person that does not cause unacceptable pain, that, in addition to other things, might show that the death penalty is not consistent with
the Eighth Amendment.”198 Justice Breyer’s comment foreshadowed his lengthy
dissent, in which he wrote that, for various reasons, it is now “highly likely that
the death penalty violates the Eighth Amendment.”199

	 When the Court issued its decision in Glossip, five of the nine justices agreed
that, as a precondition to successfully challenging a state’s method of execution, a
prisoner must plead and prove a known and available alternative.200 Missing from
this analysis was any discussion of the fact that states’ secrecy laws make it nearly
impossible for prisoners to find out what drugs are or are not actually available
to the states. The decision, instead, grew out of the majority’s factually unsupported belief that “anti-death-penalty advocates [had] pressured pharmaceutical
companies to refuse to supply the drugs used to carry out death sentences.”201
The majority feared that if a prisoner could successfully challenge a method of
execution without providing an alternate method, then the “logical conclusion”
would be that a state could not carry out death sentences.202 Justifying its tolerance for a potentially painful execution method, the majority noted that “while
most humans wish to die a painless death, many do not have that good fortune.”203
	 In a dissent joined by three other justices, Justice Sotomayor sharply contested this rationale, writing that the Court’s new requirement that a prisoner
provide the state with an alternative means to end his or her own life would lead
to “patently absurd consequences.”204 “If a State wishes to carry out an execution,”
she explained, “it must do so subject to the constraints that our Constitution

50 BEHIND THE CURTAIN

“[I]f there is no method of executing a
person that does not cause unacceptable
pain, that, in addition to other things,
might show that the death penalty is not
consistent with the Eighth Amendment.”
U.S. Supreme Court Justice Stephen Breyer205
imposes on it, including the obligation to ensure that its chosen method is not
cruel and unusual. Certainly the condemned has no duty to devise or pick a constitutional instrument of his or her own death.”206 At an earlier stage in the case,
Justice Sotomayor remarked that “it would be odd if the constitutionality of being
burned alive, for example, turned on a challenger’s ability to point to an available
guillotine.”207 Justice Sotomayor also rejected the notion that the independent
choices made by drug companies should be imputed to prisoners. The condemned
prisoners “had no part in creating the shortage of execution drugs,” she stressed,
and it seemed “odd to punish them for the actions of pharmaceutical companies
and others who seek to disassociate themselves from the death penalty—actions
which are, of course, wholly lawful.”208
	 Almost two years after Glossip, another lethal-injection case made its way
before the United States Supreme Court, as Alabama prisoner Thomas Arthur
challenged the use of midazolam in a three-drug formula. Arthur proposed the
firing squad as an alternative to lethal injection.209 The lower courts rejected his
proposal, holding that the firing squad was not “available” to the Department of
Corrections because the state legislature had not chosen to authorize it under
Alabama’s death-penalty statute.210 Justice Sotomayor, once again, dissented from
the Supreme Court’s denial of review, writing: “even if a prisoner can prove that
the State plans to kill him in an intolerably cruel manner, and even if he can prove
that there is a feasible alternative, all a State has to do to execute him through an
unconstitutional method is to pass a statute declining to authorize any alternative
method. This cannot be right.”211
	 State secrecy is inherently at odds with the evolving standards doctrine. As
Justice Sotomayor observed in her dissent in Arthur v. Dunn: “Evolving standards
have yielded a familiar cycle: States develop a method of execution, which is
generally accepted for a time. Science then reveals that—unknown to the previous
generation—the States’ chosen method of execution causes unconstitutional levels
of suffering. A new method of execution is devised, and the dialogue continues.

51

The Eighth Amendment requires this conversation.”212 But state laws that insulate
information about executions from public review stifle that conversation, prevent
the public input and oversight that changes state laws and practices that have
become unacceptable, and ultimately interfere with the Court’s task of assessing
contemporary values.

	 This issue has recently been litigated in Tennessee. When the state adopted
a three-drug protocol with midazolam as the first drug administered, death-row
prisoners challenged the protocol as likely to result in torturous executions. As
required by Glossip, the prisoners suggested execution with pentobarbital as one
of the alternatives to execution with the three-drug protocol. The state asserted
without evidence that it was unable to procure that drug, but state secrecy laws
prevented the prisoners from effectively responding to this claim. Instead, the
prisoners challenged the state’s contention indirectly by pointing to other states
that had successfully procured pentobarbital. This was not enough for the Tennessee courts. When Billy Ray Irick asked for his August execution warrant to be
vacated based on this evidence, the trial court held that he had not demonstrated
that pentobarbital was available and had not adequately pleaded an alternative
two-drug method.213 The Tennessee Supreme Court refused to vacate the death
warrant, and the U.S. Supreme Court denied Irick’s motion for a stay of execution.

“Not only is Glossip’s available alternative
requirement perverse, it is also
unworkable. In Tennessee, executions
are cloaked in secrecy, which makes
it difficult—if not impossible—for the
Petitioners to establish an available
alternative to the State’s method of
execution…. The trial court here prohibited
identification of the Department’s agents
who were involved in procuring execution
drugs, such as pentobarbital, and of its
potential suppliers.”
Justice Sharon G. Lee, Tennessee Supreme Court214

52 BEHIND THE CURTAIN

“[O]ur national conversation simply
may have resulted in an evolution in the
standard of decency upon which the
Eighth Amendment relies.“
Judge Jane B. Stranch, U.S. Court of Appeals for the Sixth Circuit215
As a result, Irick was executed on August 9, 2018, and medical experts have opined
that he was aware while experiencing excruciating pain and suffocation.216

	 Tennessee prisoners continued to challenge the lethal-injection protocol after
Irick’s execution. Shortly before Edmund Zagorski’s October 11, 2018, scheduled execution date, the Tennessee Supreme Court removed the lethal-injection
challenge from the appellate court’s jurisdiction and affirmed the trial court’s dismissal of the prisoners’ complaint. In dissent, Justice Sharon G. Lee recognized
how severely state secrecy and evasiveness had hindered the prisoners’ ability to
challenge the protocol: “As the trial court accurately observed, the availability
of pentobarbital was essential to the case, and without the State answering the
question as to the availability of pentobarbital, the trial court proceedings were
meaningless. For the State to provide the answer on the eve of trial while effectively evading the question for months was patently unfair to the Petitioners.”217
The state’s concealment was successful. After failing to obtain relief in state or
federal court on his challenge of the lethal-injection protocol, Zagorski chose to
be executed by electrocution.218

	 The drug companies’ refusal to supply lethal-injection drugs has been used
against prisoners raising constitutional challenges. However, the actions of the
drug companies are themselves relevant to determining the evolution of our social
values. As Judge Jane B. Stranch of the U.S. Court of Appeals for the Sixth Circuit
wrote in April 2017 concerning a challenge to Ohio’s lethal-injection protocol,
“The refusal of drug companies to sell execution drugs may evidence a recognition
of changing societal attitudes toward the death penalty.”219

	 Courts have long considered the views of professional communities “with
germane expertise” in giving substance to the country’s evolving standards of
decency.220 The uniform view of the medical community—as expressed in resolutions by more than twenty state, national, and international medical associations221
and the non-distribution policies of more than fifty pharmaceutical companies222—is evidence to be considered in the evolving standards analysis. However,
when states are permitted to conceal how and from whom they have procured
lethal-injection drugs, they impede pharmaceutical companies from fully engaging in this dialogue.
53

PROBLEMATIC
EXECUTIONS
USING NEW
DRUG FORMULAS
	 As manufacturers have chosen to deny death-penalty states access to commonly used execution drugs, states have begun experimenting with new drugs.
With these new drug combinations, new problems have arisen in executions.
Although secrecy laws and policies have concealed information about drug sourcing and execution practices, visually and audibly problematic executions have
graphically revealed serious problems with new drug formulas.
	 Several states have substituted midazolam for a barbiturate as the first drug in
a three-drug execution protocol. The first drug is supposed to place the prisoner
in a deep comalike state, unable to feel the torturous effects of the second and
third drugs. If the first drug does not work properly, then the prisoner will be
paralyzed by the second drug, unable to express outward reaction, as he suffocates
while fluid builds up in his lungs and his veins are
chemically burned by the third drug.
	 Midazolam is not in the same class of drugs as
barbiturates (such as sodium thiopental or pentobarbital) and therefore does not act in the same manner
as those drugs. Midazolam is a benzodiazepine—a
sedative like Xanax or Valium. Pharmacologists have
explained that the chemical structure of benzodiazepines makes them incapable of producing a deep
level of unconsciousness.223

	 Despite this known fact, eight states (Alabama, Arizona, Arkansas, Florida,
Ohio, Oklahoma, Tennessee, and Virginia) have used midazolam in executions.
Execution witnesses in each of those states have reported similar troubling
observations of a phenomenon medical experts call “air hunger,” in which the
prisoners are left gasping for breath. In more than 60% (7 of 11) of the midazolam executions in 2017, eyewitnesses reported problems ranging from labored
breathing to gasping, heaving, writhing, and clenching fists.
	 Lethal injections using other new drug formulas have also raised concerns
about torturous executions. Witnesses have described visible or audible signs of
extreme pain in executions using etomidate, diazepam, and fentanyl. Although
54 BEHIND THE CURTAIN

“[O]ur lived experience belies any
suggestion that midazolam reliably
renders prisoners entirely unconscious
to the searing pain of the latter two
drugs. These accounts are especially
terrifying considering that each of these
men received doses of powerful paralytic
agents, which likely masked the full
extent of their pain.”
U.S. Supreme Court Justice Sonia Sotomayor224
secrecy laws conceal portions of these executions from public view, what has been
seen raises questions about whether states are routinely inflicting cruel and unusual punishment in the execution process.

Florida
	 Florida—the first state to use midazolam in executions—conceals from the
public much of the execution process. During the execution of William Happ in
2013—the state’s first midazolam execution—the media reported that Happ’s
body moved more than usual, including his head moving back and forth, after
he was declared to be unconscious.225 Florida also taped Happ’s hands, repeating
this practice in subsequent executions. Prison officials justified this measure in a
later midazolam execution by claiming it was necessary to prevent condemned
prisoners from flashing gang signs or making obscene gestures before death.226
Moreover, prior to Happ’s execution, Florida had laid a sheet flat over the
prisoner’s body. After his execution, the state began tenting the sheet over the condemned prisoner, preventing witnesses from observing any body movements.227

	 During the 2014 midazolam execution of Eddie Wayne Davis, execution
personnel failed to assess whether Davis was unconscious before administering
the paralytic and the third drug, which causes severe burning. A witness reported
seeing Davis’s “head tilt back and his mouth opening and closing in a tortured
grimace.”228
55

	 Florida conducted thirteen executions with a three-drug midazolam protocol
before it replaced midazolam with the barbiturate etomidate in January 2017.229
As of August 31, 2018, Florida has carried out four executions using etomidate. A
reporter who witnessed the etomidate execution of Patrick Hannon in November
2017 noted that Hannon moved during the execution. “His lips twitched, his
chest heaved and his arms, legs and body appeared to convulse a bit.”230 In February 2018, Eric Branch uttered a “bloodcurdling” scream and thrashed against
restraints after the administration of the drugs.231

Ohio

Dennis McGuire

	 In January 2014, Ohio administered midazolam as one of two drugs in a never-before-used formula: midazolam and hydromorphone. The prisoner it planned
to execute, Dennis McGuire, challenged the formula with the support of medical
testimony from an anesthesiologist who said this method would cause McGuire
to experience pain and suffering and likely “air hunger.”232 Although the federal judge acknowledged that the execution amounted to “an experiment in lethal
injection processes,” he allowed it to go forward.233 Eyewitnesses reported that
McGuire clenched his fists and strained against the gurney, heaving and gasping
for breath, and they heard snorting and choking sounds—the same reaction that
medical experts had warned about.234 A lawsuit filed by McGuire’s family after
the execution alleged that he had experienced “repeated cycles of snorting, gurgling and arching his back, appearing to writhe in pain…. It looked and sounded
as though he was suffocating.”235 Witnesses to the execution publicly expressed
concern about what they had seen; some went further and called upon the governor to end capital punishment.236 Afterwards, Ohio halted all executions while
the state worked to revise its protocol.

	 One year later, in January 2015, Ohio announced it would abandon the use
of midazolam and hydromorphone and return to its previous one-drug protocol using a mass dose of a single barbiturate.237 But in October 2016, the state
changed its protocol again to include a three-drug formula beginning with midazolam.238 Condemned prisoners with looming execution dates challenged the
use of midazolam, and after a five-day hearing in which the prisoners presented
expert testimony supporting their position, a federal magistrate judge stayed the
executions.239 The state appealed, and eventually a divided U.S. Court of Appeals
for the Sixth Circuit reversed the decision in an 8-6 vote and vacated the stays.240
As of August 31, 2018, Ohio has carried out three executions using midazolam as
part of a three-drug formula.241 During the second execution in September 2017,
one minute after the drug administration began, prisoner Gary Otte’s “stomach
was moving unnaturally up and down.” Tears were “streaming down the left side
of his face. His left fist was curled tightly.”242
56 BEHIND THE CURTAIN

Oklahoma
	 Oklahoma was the second state in which a midazolam execution generated
intense adverse national attention. The state had scheduled two executions for the
evening of April 29, 2014: one at 6:00 p.m. (Clayton Lockett) and one at 8:00
p.m. (Charles Warner). It was the first time Oklahoma had attempted two lethal
injections in a single night, and the first time the state would be using midazolam.
But Oklahoma dramatically botched the first attempted execution, and the second execution had to be postponed.
	 Before the scheduled executions, a state trial court ordered the state to provide
defense attorneys information about the lethal-injection drugs Oklahoma intended to use. But state prosecutors appealed, and the Oklahoma Supreme Court
stayed the executions to review the issue. This led to a state political and constitutional crisis. Legislators called for impeachment of the justices who voted to stay
the executions, and Governor Mary Fallin threatened that she would not enforce
the stay. Two days after issuing the stay, the Oklahoma Supreme Court reversed
course and allowed the execution to proceed without the disclosure of drug information.243 This veil of secrecy would remain in place until Lockett’s visibly
gruesome execution led to a state investigation.

Clayton Lockett

	 Anxiety was in the air leading up to the double-scheduled executions. State
officials claimed they could no longer acquire the drug Oklahoma had previously used in lethal injections, and the attorney general’s office was under political
pressure to quickly find a replacement so executions could continue without delay. 244 Conducting online research, the corrections department’s general counsel
scrambled to find a new drug using what he described as “Wiki leaks or whatever
it is.”245 He chose midazolam. Although the state’s protocol vested the prison
warden with sole responsibility for selecting the execution drugs, Warden Anita
Trammell played no role in this change to the state’s protocol. Instead, she was
told after the fact that there was a new protocol. In an interview after the execution, Warden Trammell admitted, “I didn’t write the policy. I don’t know anything
about the drugs.”246 She was not alone. When the warden discussed midazolam
with the lethal-injection team shortly before the execution was scheduled to begin, she learned that “the executioners didn’t know anything about [midazolam].
No one did.”247 Even the physician-executioner—a last-minute replacement—
said that he did not know what the second and third drugs were and that he
“didn’t really care to know what they were.”248
	 Compounding the risks that something would go wrong, Oklahoma had
scheduled two executions in one evening. According to the report published after
the state investigation was completed, “It was apparent the stress level at [Oklahoma State Penitentiary] was raised because two executions had been scheduled
on the same day.”249 One of the execution team members described the situation

57

as “an atmosphere of apprehension”250 and explained that there was an “air of urgency”251 that evening. The general counsel for the Department of Corrections felt
that the department “was under a lot of pressure” to “get it done” and “hurry up
about it.”252

	 On the night of the double execution, problems were apparent from the start.
The execution chamber lacked the proper medical equipment, including the correct
size tubing and needles. The paramedic supplied tubing from her own personal
supply because the prison’s supply was the wrong size.253 Raising questions about
his qualifications and judgment, the physician-executioner placed an IV using a
needle that was also the wrong size.

	 Both the paramedic and physician-executioner demonstrated medical ineptitude. The paramedic charged with establishing IV access was unable to set
the IV in Lockett’s arms. Questioned later about her difficulty in setting the IV
line, she replied “that people who are very fair complected [sic], their veins are
deep because—I don’t know why. And black people have small veins.”254 That,
of course, was simply not true, and Oklahoma’s use of a paramedic who was not
only ignorant of human anatomy but also harbored race-based misconceptions
about physiology raised serious questions about the state’s process for selecting
the execution team and the qualifications of its execution personnel.

	 Because of the paramedic’s incompetence, the physician-executioner had to
assist in setting Lockett’s IV line. Together, they punctured Lockett at least sixteen times in his arms, feet, neck region, and groin area before finally setting the
IV. Witnesses were not permitted to observe this process, but after the execution,
Warden Trammell described the execution team’s efforts as “jabbing” and “poking”
Lockett. “[T]here was blood everywhere,” she said.255 The IV line eventually established in Lockett’s groin used a needle the physician-executioner described as
“marginal.”256 The needle was 1.25 inches—the only size available—but it was the
wrong size. A standard 2-2.25-inch needle would have been appropriate.257 The
physician-executioner who set the line explained, “[w]e had stuck this individual
so many times, I didn’t want to try and do another line.”258
	 After the IV line was established the curtains opened—nearly thirty minutes
past the scheduled start time—giving witnesses their first view of the execution
process.259 Within ten minutes after the midazolam was injected, the physician-

Clayton Lockett was “squeezing his eyes
tight and tightening his muscles and his
mouth as if he were grimacing in pain.”
Lisbeth Exon, Reporter and Execution witness260
58 BEHIND THE CURTAIN

executioner assessed Lockett, and the warden declared him unconscious.261 Minutes later, however, Lockett started moving, jerking around, and straining against
the gurney. Witnesses heard him say, “the drugs aren’t working.”262 For several
minutes, Lockett was seen grunting and writhing.263 From his vantage point in
the room with Lockett, the physician-executioner “thought he was seizing.”264 The
Corrections Director Robert Patton described Lockett as “trying to pull up and
his head was pulling up off the table… and kind of bearing [sic] his teeth.”265 One
media witness reported that Lockett was “squeezing his eyes tight and tightening
his muscles and his mouth as if he were grimacing in pain.”266 A victim-advocate
witness described the scene as reminiscent of a horror movie.267
	 Shortly after Lockett’s writhing became unmistakably noticeable, execution
personnel closed the curtains, concealing the remainder of the execution from the
public. Approximately fourteen minutes later, the Director informed the witnesses that the execution had been called off.268 Ten minutes after the execution was
stopped, Lockett was pronounced dead, not from the execution but from a heart
attack.269 Witnesses had been prevented from seeing what happened during the
last 24 minutes of Lockett’s life.270

	 Warden Trammell would later describe the scene behind the curtain as “a
bloody mess.”271 At some point during the execution, the mis-sized IV line had
failed and some of the drugs began to enter the tissue surrounding the vein. This
produced a sack of fluid under Lockett’s skin that was larger than a golf ball.272
Behind the curtain, the physician-executioner attempted to set another IV line
in Lockett’s groin but hit an artery instead, spraying blood all over his coat. Although the physician-executioner wanted to establish a second line in the artery,
the paramedic reminded him that he could not do that because “it doesn’t work
that way.”273 Nor would a second line have mattered: Oklahoma did not have
additional drugs to administer to Lockett.274 After this disaster, Governor Mary
Fallin stayed the evening’s second scheduled execution of Charles Warner. 	
	 The botched Lockett execution produced a swift and widespread outcry. President Barack Obama found the execution “deeply disturbing” and called for an
investigation by the Justice Department.275 Attorney General Eric Holder was
“greatly troubled” by the events and ordered the Justice Department’s Civil Rights
and Criminal Divisions to look into execution protocols.276 Oklahoma’s staunchly
conservative Senator Tom Coburn, a doctor, said the execution was “not done
appropriately” and that he would prefer that people like Clayton Lockett be given
life sentences.277
	 Oklahoma’s problem executions did not end with Lockett’s. Its last execution
occurred on January 15, 2015, when its secrecy laws and policies contributed to
executing Charles Warner with the wrong drugs. That mistake came to light when
only hours before the scheduled execution of Richard Glossip, the same drug
mix-up occurred, and Glossip’s execution was stayed only because an assistant
attorney general resisted the entreaties of the governor’s counsel to ignore and
conceal this violation of the execution protocol.278

59

Arizona
	 States concerned about the execution debacles in Oklahoma and Ohio—particularly those using midazolam—might reasonably have put their executions on
hold until the problems in those states had been fully investigated and corrected.
But that did not happen. Using the same problematic drug formula as Ohio (midazolam and hydromorphone), Arizona scheduled the execution of Joseph Wood
for July 23, 2014.

Joseph Wood

	 Weeks before his scheduled execution, Wood sued the state, arguing that he
had a First Amendment right to information about the drug formula and source
of drugs that Arizona intended to use in his execution. A panel of the U.S. Court
of Appeals for the Ninth Circuit agreed and directed Arizona to reveal the source
of its two execution drugs. The court stayed Wood’s execution, finding he raised
serious questions on the merits of his First Amendment claim.279 Arizona prosecutors asked the U.S. Supreme Court to vacate the stay, arguing that its protocol
was available on its website and that the public, therefore, already had “access to all
of the provisions of the protocol which include: the names of the drugs to be used,
the amounts of the drugs to be delivered in the execution, the manner in which
the drugs will be administered, and the qualifications of persons tasked with placing intravenous lines for the administration of the drugs.”280 In a one-paragraph
order, the Supreme Court lifted the stay.281
	 Joseph Wood was executed the following day, with problems of a magnitude
never seen before in any lethal injection. For nearly two hours, Wood “gulped like
a fish on land,” gasping for breath more than 640 times.282 A media witness described Wood’s movement as piston-like: “The mouth opened, the chest rose, the
stomach convulsed.”283

	 The execution took so long that Wood’s lawyers left the witness room to file
emergency motions to stop it from continuing.284 The federal district court held a
telephonic hearing while the execution was still under way. More than one hour
after the state began its attempt to kill Wood, his lawyer implored the court to

Joseph Wood “gulped like a fish on land.
The movement was like a piston: The mouth
opened, the chest rose, the stomach
convulsed … more than 640 [times].”
Michael Kiefer, Arizona Republic, Reporter and Execution witness285
60 BEHIND THE CURTAIN

order Arizona to halt the execution and perform life-saving measures.286 An hourand-a-half into the execution, the state’s attorney told the court that the prison
had administered “[a] second dose of drugs” and assured the court that Wood was
already “brain dead.”287 Although the judge expressed skepticism that the state
could render such a clinical judgment without any measure of brain activity, he
concluded that stopping the execution risked subjecting Wood to even more pain.
Towards the end of the hearing, the state’s attorney informed the court that Wood
had died.288
	 The state made two material misrepresentations to the court during the hearing—falsehoods that came to light only after the execution. First, records released
one week after the execution showed that the state had to use fifteen doses of the
lethal-injection drugs over the almost two-hour execution.289 When the state’s
attorney told the court that a “second” dose had been administered, in actuality thirteen doses of drugs had already been administered. Moreover, Arizona’s
execution protocol prescribed administration of “50mg Midazolam and 50mg
Hydromorphone,” and that is the amount the state told the courts—including
the U.S. Supreme Court—would be administered. Instead, Wood received 750mg
of each of the two drugs. Arizona’s undisclosed change in protocol in Wood’s
execution was not an isolated occurrence. The U.S. Court of Appeals for the Ninth
Circuit had previously criticized the state for “amending its execution protocol
on an ad hoc basis,” creating a “rolling protocol” that forced the court “to engage
with serious constitutional questions and complicated factual issues in the waning
hours before executions.”290

	 Arizona’s second misrepresentation during the telephonic hearing was its
mischaracterization of Wood’s medical condition. The state’s attorney said that
Wood was “brain dead,” a statement that was not and could not have been accurate. As Dr. Chitra Venkat, a professor of neurology and neurological sciences at
Stanford University, said: “If you are taking breaths, you are not brain dead. Period.
That is not compatible with brain death, at all. In fact, it is not compatible with
any form of death.”291 Harvard Medical School anesthesiology professor, David
Waisel, M.D.—the same expert who accurately predicted what would happen in
Ohio when it used midazolam—said: “There is no way anyone could ever look at

“If you are taking breaths, you are not brain
dead. Period. That is not compatible with brain
death, at all. In fact, it is not compatible with
any form of death.”
Dr. Chitra Venkat, Stanford University292
61

someone and make that kind of diagnosis. [Wood] was still breathing, so he was
not brain dead. This is an example where they threw out a term that has a precise
medical definition, but they didn’t know what it means.”293

	 Arizona has not attempted any executions since it executed Wood. After being
sued by death-row prisoners, the state agreed to abandon the use of midazolam in
any future executions.294 In another lawsuit brought by the media, a federal district
court judge ordered Arizona to allow witnesses at executions to see the drugs as
they are being administered to the prisoner and prohibited the state from closing
the curtains during an execution—as occurred in Oklahoma—absent a legitimate
penological objective.295

Alabama

Ronald Smith

	 Alabama used midazolam to execute Ronald Smith in December 2016. The
state conceals most of its information surrounding executions—including hiding
its protocol from the public—and as a result, Smith’s request for information
about the drug had been denied. Without that information, his constitutional
challenges to the state’s use of midazolam also were rejected by the courts. During
his execution, Smith—like others before him who were given midazolam—gasped
for breath for nearly fifteen minutes of the 34-minute-long execution.296 A media
witness observed Smith heaving and clenching a fist and noticed that one of his
eyes appeared to be open.297

	 A lawyer who witnessed Smith’s execution, Spencer Hahn, reported that
approximately two minutes after a dose of midazolam was administered, Smith
“began having difficulty breathing, including regular asthmatic-sounding barking coughs every ten seconds or so. He also lifted his head and looked around,
moved his arms, clenched his left hand, and moved his lips in what appeared to
be an attempt to say something.”298 An Alabama corrections officer conducted a
“consciousness” check, and Smith moved when he was pinched.299 The state then
administered another dose of midazolam and conducted a second “consciousness”
check.300 Smith continued to move after the second check, but Hahn noticed
shortly afterwards that Smith’s breathing had become shallow, and Smith stopped
moving. At that point, Hahn assumed that the paralytic had been administered.301
Despite this objectively verifiable evidence of problems, Alabama said in a statement it released to the media that the state followed its protocol and claimed
there had been no indication that Smith had suffered.302 Alabama has refused to
release any documents related to Smith’s execution.303
	 Alabama continued to use midazolam in a three-drug formula after Smith’s
execution, with continuing evidence of problematic executions. When Torrey
McNabb was executed in October 2017, media witnesses reported that McNabb

62 BEHIND THE CURTAIN

Ronald Smith “began having difficulty
breathing, including regular asthmaticsounding barking coughs every ten seconds or
so. He also lifted his head and looked around,
moved his arms, clenched his left hand, and
moved his lips in what appeared to be an
attempt to say something.”
Spencer Hahn, Attorney304
was still moving more than fifteen minutes after the execution began. His hands
twitched, his fists clenched, and his body writhed.305 Approximately “twenty
minutes after the first in a succession of drugs entered his bloodstream, McNabb raised his right arm and hand and his face briefly twisted into an intense
grimace.”306 Almost fifteen minutes later, he was pronounced dead. Alabama
Department of Corrections Commissioner Jeff Dunn said that he was “confident”
that McNabb had been unconscious while he moved. While asserting that the
state “follow[s] the protocol as it is written,” Dunn refused to “talk specifically
about the protocol.” 307

Virginia

	 In January 2017, Virginia executed Ricky Gray. Witnesses to the execution
watched as Gray was brought into the execution chamber and strapped to the
gurney. Then, as is Virginia’s practice, the curtains were closed while the execution team attempted to place the IV lines. This process typically took only a few
minutes—usually not more than ten.308 But during Gray’s execution, the witnesses
waited for more than half an hour before the curtains were re-opened.309 On the
evening of the execution, prison officials offered no explanation for the delay. But
the following day, they admitted it was because they had had difficulty finding
a vein.310

Ricky Gray

	 Gray was executed with compounded midazolam and compounded potassium chloride as part of a three-drug protocol.311 This was the first time that compounded versions of either drug were used in an execution.312 Witnesses to the execution reported that Gray made what appeared to be gasping noises and showed

63

signs of labored breathing.313 Dr. Mark Edgar, an independent pathologist who
later reviewed the autopsy report, opined that Gray had experienced suffocation
during his execution.314 He said, “The anatomic changes described in Ricky Gray’s
lungs are more often seen in the aftermath of a sarin gas attack than in a routine
hospital autopsy.”315 Witnesses saw Gray move his head from side to side after the
consciousness check—movements, his lawyer said, “could be further evidence of
his body’s desperate reaction to suffocation.”316 Defense attorneys for condemned
prisoner William Morva sought a reprieve from Morva’s July 2017 execution
based on Dr. Edgar’s conclusions about Gray’s death but were unsuccessful.317

	 After the execution, Gray’s attorneys voiced additional concerns about the
process, including the length of time it had taken execution personnel to set an
IV line. They said that the prison had checked Gray’s veins before the execution
and found nothing to suggest that Gray—an otherwise healthy 39-year-old
man—had any problems with his veins.318 Gray’s lawyers and the American Civil
Liberties Union called for an independent inquiry into the execution, but the
Commonwealth claimed all had gone well, adding the assurance that “attorneys
from the Office of the Attorney General observed the entire process along with
Department of Corrections officials and senior staff.”319 But the public did not
witness the entire process, nor did any neutral observer, and Virginia refused to
release any additional information to the public after Gray’s execution.

	 Gray’s problematic execution generated calls for more openness and transparency, and less than three weeks later the Virginia Department of Corrections
changed its execution protocol.320 That change, however, did not make the
procedures more transparent or public officials more accountable. Instead, Virginia retreated further into secrecy by literally closing the curtain on even more of the
execution process. The state’s new protocol now delays opening the curtains to the
witness room until after the IV lines have been established.321 Witnesses will no
longer see the prisoner brought into the execution chamber and strapped to the
gurney. The public will no longer know when the IV-insertion process begins and
ends. These changes do nothing to ensure more competent setting of IV lines or
to facilitate improved public oversight of the process. They simply deny the public
important information about how long it takes prison personnel to set the IV,
and they make it more difficult to assess whether execution complications have
occurred.
	 Virginia executed William Morva on July 6, 2017, using its new protocol.
The curtain was opened only after Morva had been strapped to the gurney and
the IV lines had been established.322 In a press conference immediately following
the execution, a media witness reported that, approximately three minutes after
Morva had been silent, he began “gasping for air” several times, with his stomach
contracting “pretty dramatically.”323 Disregarding this evidence of air hunger, the
spokesperson for the state reported that the execution “was carried out without
complications.” 324

64 BEHIND THE CURTAIN

Arkansas
	 In February 2017, Arkansas Governor Asa Hutchinson scheduled eight executions to take place over an eleven-day period in April 2017. It was the most
executions scheduled in the shortest period of time in the modern history of the
death penalty in the United States.325 There was one reason, and one reason only,
for the rush: the state’s supply of the execution drug midazolam was set to expire
on April 30, 2017.326
	 Shortly before the executions, the condemned prisoners challenged the state’s
use of midazolam, arguing that it risked subjecting them to an unconstitutionally
torturous death. A federal district court conducted a four-day evidentiary hearing, after which the judge stayed the executions based on her conclusion that the
prisoners were likely to prevail in a trial on the merits.327 The 100-page order was
reversed on appeal in part because the court of appeals determined that the prisoners could have brought their lawsuit sooner.328

Kenneth Williams

	 Four of the eight scheduled executions were ultimately stayed for reasons unrelated to the lethal-injection protocol. The state limited public access to information about the four executions that went forward.329 During the executions, no
announcements were made as to when each of the drugs were administered, nor
could the witnesses determine the timing from the viewing room. During the
execution of Marcel Williams, a media witness speculated that the executioner
administered a second dose of midazolam “since the official began a second round
of consciousness checks that were less thorough than before.”330 In three of the
four executions, witnesses reported that the prisoners opened their mouths and
gasped for air, and in two instances, witnesses saw prisoners lurching against the
gurney.331 The time logs Arkansas released after the executions were cursory and
uninformative; the only information recorded about any of the drugs was the time
at which the first chemical was injected.332

	 The final of the four executions was the most visibly problematic. Media witnesses reported seeing Kenneth Williams “coughing, convulsing, lurching, jerking,
with sound that was audible even with the microphone turned off.” Associated
Press reporter Kelly Kissel, who has witnessed ten executions, said “Williams’
body jerked 15 times in quick succession—lurching violently against the leather
restraint across his chest.”333
	 Because of these clearly observable problems and the witnesses’ consistent
descriptions of Williams gasping and lurching during the execution, Williams’s
lawyers called for an investigation.334 Governor Hutchinson refused, saying he was
“satisfied” with the information he had received about Williams’s execution from
the Department of Correction.335 But neither the Governor nor the Department
ever disclosed that information—whatever it was—to the public. The state’s

65

internal execution log, which was released, contains nothing that helps to explain
what transpired during Williams’s execution:

			Although Arkansas has not carried out an execution since Williams’s, it
has indicated that it intends to keep using midazolam in a three-drug formula.336
In November 2017, the Arkansas Supreme Court ruled that the state’s Freedom
of Information Act requires the Department of Correction to release copies of
the pharmaceutical drug and packaging labels for the supply of the drugs that
it intends to use in upcoming executions. However, the court permitted the department to redact the batch and lot numbers that appear on the labels.337 In
July 2018, state officials announced that they would not carry out any executions
in 2018 because of difficulties procuring execution drugs. State officials blamed
those difficulties on their inability to keep drug information secret and have said
they will not attempt to procure new drugs unless the state legislature expands the
state secrecy law to include drug manufacturers.338

Tennessee

	 After eight years without executions, Tennessee adopted a three-drug protocol
in January 2018 using midazolam, vecuronium bromide, and potassium chloride.
Thirty-three death-sentenced prisoners challenged the protocol based on expert
opinion and other states’ experiences with midazolam. A Tennessee trial court
conducted an expedited evidentiary hearing about the new protocol, finding that
the prisoners “established that midazolam does not elicit strong analgesic [i.e.,
pain-inhibiting] effects” and that a prisoner “may be able to feel pain from the
administration of the second and third drugs.” However, the trial court denied

66 BEHIND THE CURTAIN

relief based on its conclusion that the prisoners had not effectively pleaded or
proven the availability of a less painful alternative.339

	 Billy Ray Irick, who was scheduled to be executed in August 2018, requested
that his death warrant be vacated because of the risk of cruel and unusual punishment inherent in Tennessee’s protocol. His efforts to delay his execution were
unsuccessful in state and federal courts. In dissenting from the U.S. Supreme
Court’s denial of Irick’s stay motion, Justice Sonia Sotomayor wrote:
In refusing to grant Irick a stay, the Court today turns a
blind eye to a proven likelihood that the State of Tennessee
is on the verge of inflicting several minutes of torturous
pain on an inmate in its custody, while shrouding his suffering behind a veneer of paralysis…. If the law permits
this execution to go forward in spite of the horrific final
minutes that Irick may well experience, then we have
stopped being a civilized nation and accepted barbarism.340
	 On August 9, 2018, Irick’s execution went forward, taking more than 20 minutes. During the prolonged process, Irick choked, gasped, coughed, moved his
head, and strained his forearms against restraints. Witnesses reported that Irick
continued to move after the consciousness check, meaning that he could have felt
the effects of the second and third drugs “and would have experienced the feeling
of choking, drowning in his own fluids, suffocating, being buried alive, and the
burning sensation caused by the injection of the potassium chloride.”341 Records
from Irick’s execution indicate that the state violated its own execution protocol
by failing to prepare an additional dose of midazolam, the drug used to sedate
him. Questions about the protocol continue to be litigated by other death-row
prisoners.

Nebraska

	 After more than 20 years with no executions, Nebraska performed its first
lethal injection on August 14, 2018. The state executed Carey Dean Moore with
a never-before-used formula of diazepam (Valium), fentanyl citrate (an opioid
painkiller), cisatracurium besylate (a paralytic), and potassium chloride to stop
the heart. The execution took 23 minutes. Media witnesses noted that “Moore
coughed, his diaphragm and abdomen heaved, he went still, then his face and fingers gradually turned red and then purple, and his eyes cracked open slightly. One
witness described his breathing as shallow, then deeper, then labored.”342 Moore’s
face turned reddish, then purple. A curtain was lowered after the final drug was
administered, blocking witnesses’ view of Moore’s reactions. The curtain remained
closed for 14 minutes, during which Moore was declared dead.343
67

	 Many of these troubling executions created a public outcry and received
extensive media coverage, yet states continue their experimentation with
midazolam and other lethal-injection drugs. Given the well-documented risks
of using these new drugs, it is hard to describe the resulting execution problems
as unanticipated. As Justice Sotomayor has written in several cases involving
midazolam executions,“[s]cience and experience are now revealing that, at least with
respect to midazolam-centered protocols, prisoners executed by lethal injection are
suffering horrifying deaths beneath a ‘medically sterile aura of peace.’”344

	 At a time in which the United States has seen bipartisan movement toward
criminal-justice reform, state experimentation with questionable drug formulas—
the details of which are hidden behind secrecy statutes—expose execution practices
as noticeably out of step. The continuing use of demonstrably inappropriate drugs,
improperly obtained and administered behind a veil of secrecy, is a recipe for even
more problematic executions.

68 BEHIND THE CURTAIN

CONCLUSION
“[S]ecrecy has no place in a democracy, especially not for
actions as irreversible as executions.”
	Former Texas Governor Mark White & Former Florida Supreme 	
	 Court Justice Gerald Kogan345
	 Our democracy was founded on principles of open and transparent government of the people, by the people, and for the people. The government operates
with the electoral consent of the people and its legitimacy depends on being
accountable to the people for its decisions. When a state hides critical information
from the public regarding the most serious criminal sanction it permits, it violates
these core democratic values. Acting in secret, the government lacks accountability to its citizens. Ruling in secret, it lacks legitimacy.

		Enabled by their secrecy laws, many states have violated state and federal laws,
breached contracts, obtained drugs from unfit suppliers, and hired incompetent
executioners. Because much of that information remains hidden, the people may
never know how often and pervasively this misconduct occurs. When pharmaceutical companies oppose the misuse of their medicines to carry out executions,
states respond with more secrecy, concealing information that would permit
companies to learn when a state has acquired their drugs through subterfuge.
When execution witnesses raise concerns about problematic executions, reporting
that prisoners have gasped, jerked, and writhed before they died, states deny the
obvious and claim the executions went off as planned, and then change their
execution protocols to further restrict public access.
		States have claimed that heightened secrecy is needed to protect their anonymous drug suppliers from public reprisals and legal action by pharmaceutical
manufacturers for contract breaches. But if states cannot in the light of day obtain
the drugs used to lawfully carry out executions, is that not evidence that society’s
standards have evolved to the point that lethal injections are no longer tolerable?
And if states can only obtain drugs that produce torturous executions, are those
executions a civilized society should tolerate at all?

		Instead of hiding execution information from the public, states should act
openly and transparently so that citizens, legislators, and judges can have a fully
informed discussion about the death penalty. It is impossible to know whether
current methods of execution are consistent with evolving standards of decency
if methods are kept secret. When states hide information in a deliberate effort to
keep the people ignorant, America looks less and less like the democratic society
it was founded to be.

69

†
Prior to joining the DPIC staff, Ms. Konrad provided legal representation to the following
prisoners who are discussed in this report: Richard Glossip, Jeffrey Landrigan, Charles Warner,
and Joseph Wood.
1

Detroit Free Press v. Ashcroft, 303 F.3d 681, 683 (6th Cir. 2002).	

See, e.g., DPIC, Oklahoma Grand Jury Issues Report Detailing “Blatant Violations” of the
State’s Execution Protocol, at https://deathpenaltyinfo.org/node/6463. 	
2

3

Trop v. Dulles, 356 U.S. 86, 101 (1958).	

Kennedy v. Louisiana, 554 U.S. 407, 419 (2008) (quoting Atkins v. Virginia, 536 U. S. 304, 311
(2002)).	
4

5

Gregg v. Georgia, 428 U.S. 153, 232 (1976) (Marshall, J., dissenting).

Interim Report Number 14, In the Matter of the Multicounty Grand Jury, State of Oklahoma,
Case No. SCAD-2014-70 at 103 (Okla. May 19, 2016).
6

John D. Bessler, Televised Executions and the Constitution: Recognizing a First Amendment
Right of Access to State Executions, 45 Fed. Comm. Law Journal 355, 360 (Aug. 1993).
7

8

Id. at 358.	

9

Id. at 361.	

John D. Bessler, Death in the Dark: Midnight Executions in America, 207 (Northeastern
1997).	
10

11

Gregg v. Georgia, 428 U.S. 153 (1976); Furman v. Georgia, 408 U.S. 238 (1972).

DPIC, Searchable Execution Database, at https://deathpenaltyinfo.org/viewsexecutions.	
12

13
This formula was developed by then-Oklahoma medical examiner, A. Jay Chapman, M.D.,
who admitted he was an expert in dead bodies, but not in “g etting them that way.” Deborah
W. Denno, The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty, 76
Fordham Law Review 49, 66 (2007) (hereinafter “The Lethal Injection Quandry”).
14

Id. at 62-65.

Austin Sarat, Gruesome Spectacles: Botched Executions and America’s Death Penalty,
Appendix A (Stanford Univ. Press 2014). Sarat’s definition:
15

“Botched executions occur when there is a breakdown in, or departure
from, the ‘protocol’ for a particular method of execution. The protocol can
be established by the norms, expectations, and advertised virtues of each
method or by the government’s officially adopted execution guidelines.
Botched executions are ‘those involving unanticipated problems or delays
that caused, at least arguably, unnecessary agony for the prisoner or that
reflect gross incompetence of the executioner.’ Examples of such problems
include, among other things, inmates catching fire while being electrocuted,
being strangled during hangings (instead of having their necks broken), and
being administered the wrong dosages of specific drugs for lethal injections.”
Id. at 5.
16
The first state to carry out an execution using pentobarbital was Oklahoma, on December
16, 2010. See DPIC, State-by-State Lethal Injection, at https://deathpenaltyinfo.org/state-lethalinjection.
17
Baze v. Rees, 553 U.S. 35, 53 (2008) (stating that if the prisoner is not properly
anesthetisized, there would be a “substantial, constitutionally unacceptable risk of suffocation
from the administration of pancuronium bromide and pain from the injection of potassium
chloride”); Glossip v. Gross, No. 14-7955, 576 U.S. ___ (2015) (Sotomayor, J., dissenting) (“The
latter two drugs are intended to paralyze the inmate and stop his heart. But they do so in a
torturous manner, causing burning, searing pain.”).

70 BEHIND THE CURTAIN

18

Baze v. Rees, 553 U.S. 35, 71 (2008) (Stevens, J., concurring).

19

Id. at 73.

20

2016.

Erik Eckholm, Pfizer Blocks the Use of Its Drugs in Executions, New York Times, May 13,

21
Lincoln Caplan, The End of the Open Market for Lethal-Injection Drugs, New Yorker, May
21, 2016.	

State v. Hon. Alice Gray & McKesson Medical-Surgical, Inc., No. CV-17-317, McKesson
Medical-Surgical, Inc.’s Response to Emergency Petition for Immediate Writ of Mandamus, Writ
of Certiorari, or Superintending Writ (Ark. Filed Apr. 20, 2017).	
22

23
McGehee v. Hutchinson, Case No. 4:17-cv-179-KGB, Amicus Brief of Fresenius Kabi USA,
LLC, and West-Ward Pharmaceuticals Corp. (E.D. Ark. Apr. 13, 2017).	
24
Bucklew v. Precythe, No. 17-8151, Brief for the Association for Accessible Medicines as
Amicus Curiae in support of neither party, July 23, 2018.	
25
DPIC, Oklahoma Botches Execution of Clayton Lockett, Apr. 30, 2014, at https://
deathpenaltyinfo.org/node/5760.	

Arthur v. Dunn, No. 16-602, slip op. at 2, 580 U. S. (2017) (Sotomayor, J., dissenting from the
denial of certiorari).
26

27

Denno, The Lethal Injection Quandary at 95.

28

American Bar Association, Execution Transparency Resolution at 12 (2015).

29

Id.

Arkansas, Georgia, Indiana, Louisiana, Mississippi, North Carolina, Ohio, Oklahoma, South
Dakota, Tennessee, Texas, Virginia, and Wyoming.	
30

See, e.g., Alabama: In re Ohio Execution Protocol, 2:16-mc-3770- WKW, Order at 3
(M.D. Ala. Jan. 25, 2017) (“The [Alabama Department of Corrections] has in place a policy that
provides that all documents associated with the execution of death-row inmates are to remain
confidential, and the policy covers the documents requested in the subpoenas. Indeed, the
confidentiality of the State of Alabama’s execution protocol and practices has been protected
in litigation brought by the state’s own death-row inmates.”). Arizona: Ariz. Rev. Stat. § 13-757
(2009) (“The identity of executioners and other persons who participate or perform ancillary
functions in an execution and any information contained in records that would identify those
persons is confidential and is not subject to disclosure pursuant to title 39, chapter 1, article
2.”) In March 2014, Arizona Department of Corrections revised its execution protocol to specify,
“The anonymity of any person … who participates in or performs any ancillary function(s) in the
execution, including the source of the execution chemicals, and any information contained in
records that would identify those persons are, as required by statute, to remain confidential and
are not subject to disclosure.” Florida: Fla. Stat. Ann. § 945.10 (2000) (“(1) Except as otherwise
provided by law or in this section, the following records and information held by the Department
of Corrections are confidential and exempt from the provisions [of public records act]… (g)
Information which identifies an executioner, or any person prescribing, preparing, compounding,
dispensing, or administering a lethal injection.”). Idaho: Idaho Admin. Code 06.01.01.135
(2011) (“The Department will not disclose (under any circumstance) the identity of the on-site
physician; or staff, contractors, consultants, or volunteers serving on escort or medical teams; nor
will the Department disclose any other information wherein the disclosure of such information
could jeopardize the Department’s ability to carry out an execution.”). Missouri: Mo. Rev. Stat.
§546.720 (2007) (“The identities of members of the execution team, as defined in the execution
protocol of the department of corrections, shall be kept confidential.”) In October 2013, Missouri
Department of Corrections amended its protocol to expand the definition of execution team:
“The execution team consists of department employees and contracted medical personnel
including a physician, nurse, and pharmacist. The execution team also consists of anyone
selected by the department director who provides direct support for the administration of lethal
chemicals, including individuals who prescribe, compound, prepare, or otherwise supply the
chemicals for use in the lethal injection procedure.” Nebraska: Neb. Rev. Stat. Ann. § 83-967
(2009) (“The identity of all members of the execution team, and any information reasonably
calculated to lead to the identity of such members, shall be confidential and exempt from
disclosure pursuant to sections 84-712 to 84-712.09 and shall not be subject to discovery or
introduction as evidence in any civil proceeding unless extraordinary good cause is shown and a
protective order is issued by a district court limiting dissemination of such information.”). In 2017,
the state refused to disclose information regarding the source of its lethal drugs, arguing that
such information would lead to the identity of execution team members. The ACLU (and local
media outlets) sued the state to obtain this information. On June 18, 2018, the court ordered
31

71

the disclosure of information regarding the source of the drugs. See State of Nebraska ex. rel.
Amy Miller, ACLU of Nebraska Foundation v. Scott Frakes, Director of Nebraska Dept. of Corr.,
No. CI-17-4283, Order (Dist. Ct. Lancaster Cty, Neb. June 18, 2018). Pennsylvania: 61 Pa. C.S. §
4305(c) (2009) (“The identity of department employees, department contractors or victims who
participate in the administration of an execution pursuant to this section shall be confidential.”).
When an execution was scheduled in 2014, the state refused to disclose information about its
drug source. Media outlets sought to intervene in the pending lawsuit, urging disclosure, but
the issue was not resolved because the execution was stayed, and all executions in Pennsylvania
have been on hold. See Chester v. Wetzel, No. 1:08-cv-1261 (M.D. Pa.). South Carolina: S.C.
Code § 24-3-580 (2010) (“A person may not knowingly disclose the identity of a current or
former member of an execution team or disclose a record that would identify a person as being
a current or former member of an execution team.”). In July 2015, the state Attorney General
issued an opinion finding that the statutory phrase “member of an execution team” must be
“broadly construed” to include “the identities of individuals and companies involved in the
process of preparing chemical compounds for use in an execution via lethal injection.”
32
See, e.g., Mo. Rev. Stat. § 546.720 (“Any person whose identity [related to executions]
is disclosed in violation of this section shall: (1) Have a civil cause of action against a person
who violates this section; (2) Be entitled to recover from any such person: (a) Actual damages;
and (b) Punitive damages on a showing of a willful violation of this section.”); Ohio Rev. Code
Ann. § 2949.221(F) (“Any person, employee, former employee, or individual whose identity and
participation in a specified activity is disclosed in violation of this division has a civil cause of
action against any person who discloses the identity and participation in the activity in violation
of this division. In a civil action brought under this division, the plaintiff is entitled to recover
from the defendant actual damages, punitive or exemplary damages upon a showing of a willful
violation of this division, and reasonable attorney's fees and court costs.”); S.C. Code § 24-3580 (“Any person whose identity is disclosed in violation of this section shall have a civil cause
of action against the person who is in violation of this section and may recover actual damages
and, upon a showing of a wilful violation of this section, punitive damages.”); S.D. Codified Law
§ 23A-27A-31.2 (“Disclosure of confidential information pursuant to this section concerning the
execution of an inmate under chapter 23A-27A is a Class 1 misdemeanor,” which carries up to
$2000 fine and/or up to one year imprisonment).
33
Although Ohio’s secrecy law was only applicable for 24-months, it provided any drug
company that supplied drugs during that time period protection for 20 years. Ohio Rev. Code
Ann. § 2949.221(D)(2) (2015). Because Ohio purchased its current drug supply—which is enough
for almost 20 executions—before the statute expired, the supplier(s) of those drugs will likely
remain unknown, and the civil liability for disclosure applies. See Andrew Welsh-Huggins,
Records show Ohio has plenty of execution drugs, Associated Press, Oct. 5, 2017.	
34
In re Ohio Execution Protocol, 2:16-mc-3770-WKW, Order at 3 (M.D. Ala. Jan. 25, 2017).
On May 30, 2018, a federal district court judge ordered the Alabama Department of Corrections
to make its lethal-injection protocol available to the public. See DPIC, Federal Judge Orders
Alabama to Disclose Execution Records, at https://deathpenaltyinfo.org/node/7114. The state
has appealed the order, and as of October 2018, no documents have been provided to the
public.

Kent Faulk, Alabama Death Row inmate Ronald Bert Smith heaved, coughed for 13 minutes
during execution, AL.com, Dec. 8, 2016.
35

Letter from Janice B. Hughes, Alabama Department of Corrections, to Suhana S. Han,
Sullivan & Cromwell, LLP, Re: Public Records Request, Feb. 2, 2017.
36

37

Hamm v. Dunn, 2:17-cv-02083 (N.D. Ala. May 30, 2018).	

Ivana Hrynkiw, Judge delays release of Alabama’s lethal injection documents, AL.com, June
7, 2018.
38

39

Executed Arkansas man ‘convulsed and groaned’, BBC News, Apr. 28, 2017.

Phil McCausland, Arkansas Execution of Kenneth Williams ‘Horrifying’: Lawyer, NBC News,
Apr. 28, 2017.
40

41
Kelly P. Kissel & Andrew DeMillo, Arkansas inmate convulses during deadline-beating
execution, Associated Press, Apr. 28, 2017.
42
Alan Johnson, Inmate’s death called ‘horrific’ under new, 2-drug execution, Columbus
Dispatch, Jan. 17, 2014.

72 BEHIND THE CURTAIN

43
Letter from Warden Donald R. Morgan to Director Gary C. Mohr, Ohio Department of
Rehabilitation and Correction, Re: After-Action Review, Dennis McGuire, Jan. 16, 2014.

Graham Lee Brewer, Execution failure in Oklahoma: Clayton Lockett dies of heart attack
after vein explodes, The Oklahoman, Apr. 29, 2014.
44

45

Id.

Kent Faulk, Alabama Death Row inmate Ronald Bert Smith heaved, coughed for 13
minutes during execution, AL.com, Dec. 8, 2016.
46

47

Id.

Alanna Durkin Richer, Virginia man convicted of 2006 slaying of family is executed,
Associated Press, Jan. 19, 2017.
48

49

Id.

Kelly P. Kissel & Andrew DeMillo, Arkansas inmate convulses during deadline-beating
execution, Associated Press, Apr. 28, 2017.
50

51
Tweet of David Lippman, TVH11, Apr. 27, 2017 (reporting on comments made by Governor
Hutchinson’s spokesperson).
52
Kelly P. Kissel & Andrew DeMillo, Arkansas inmate convulses during deadline-beating
execution, Associated Press, Apr. 28, 2017.
53
Kelly P. Kissel and Andrew DeMillo, Arkansas governor dismisses calls for full execution
probe, Associated Press, Apr. 28, 2017.
54
Sebastian Murdock & Chris D’Angelo, Virginia Executes Man With Drug That Activists Warn
Could Simulate Drowning, Huffington Post, July 5, 2017.
55

Id.

In re: Ohio Execution Protocol Litigation, 2:11-cv-01016, Declaration of Carol Wright (S.D.
Ohio Sept. 26, 2017).
56

57
Letter from Warden Ron Erdos to Director Gary C. Mohr, Ohio Department of Rehabilitation
and Correction, Re: After-Action Review, Gary W. Otte, Sept. 13, 2017.
58
Connor Sheets, ‘I hate you’: Inside the execution chamber as Alabama cop-killer put to
death, AL.com, Oct. 20, 2017.
59
Kim Chandler, Alabama Inmate Defiant Before Execution for Killing Officer, Associated
Press, Oct. 20, 2017.

Guardian News & Media LLC v. Ryan, No. 2:14-cv-02363, Order (D. Ariz. Dec. 21, 2016),
requires future executions to allow viewing of the entire process and a “contemporaneous
awareness” of the administration of each drug.
60

61
Although viewing was restricted in the 2011 execution of Paul Rhoades, Associated Press
v. Otter, 682 F.3d 821 (9th Cir. 2012), required Idaho to allow media witnesses to view the entire
execution process in the 2012 execution of Richard Leavitt.
62
Arizona and Idaho have these procedures in place only because they were directed to do
so by court order.	
63

Guardian News & Media LLC v. Ryan, No. 2:14-cv-02363, Order (D. Ariz. Dec. 21, 2016).

Jacob Rosenberg, Arkansas executions: “I was watching him breathe heavily and arch his
back”, The Guardian, Apr. 25, 2017.	
64

65

Id.

66

Id.

67

Id.

68

Detroit Free Press v. Ashcroft, 303 F.3d 681, 683 (6th Cir. 2002).

Warner v. Gross, No. 14-cv-665-F, Supplemental Brief in Support of Defendants’ Motion for
Protective Order and Brief in Support at 16 (W.D. Okla. Oct. 29, 2014).
69

70

Id.

Corinne Jurney, 2016 Global 2000: The World’s Largest Drug And Biotech Companies,
Forbes, May 27, 2016.
71

73

Pfizer, Pfizer’s Position on Use of Our Products in Lethal Injections for Capital Punishment,
Feb. 2017.
72

See, e.g., DPIC, Pharmaceutical Company Restricts Access to Drug Used in U.S.
Executions, July 6, 2011, at https://deathpenaltyinfo.org/pharmaceutical-company-restrictsaccess-drug-used-us-executions; Lethal Injection Information Center, Industry Statements, at
http://lethalinjectioninfo.org/industry-statements/.
73

74
DPIC, Lethal Injection: Statements from drug manufacturers and medical professionals, at
https://deathpenaltyinfo.org/lethal-injection#statements; Lethal Injection Information Center,
Industry Statements, at http://lethalinjectioninfo.org/industry-statements/; see also Erik Eckholm,
Pfizer Blocks the Use of Its Drugs in Executions, New York Times, May 13, 2016.
75
Ty Alper, The United States Execution Drug Shortage: A Consequence of Our Values, Brown
Journal of World Affairs, 2014.
76
State of Ohio, ex rel. Hogan Lovells US LLP and Elizabeth A. Och v. Ohio Department of
Rehabilitation and Correction, Case No. 2016-1776, Amici Curiae Brief in Support of Relator on
Behalf of Fresenius Kabi USA, LLC and Sandoz, Inc. (Ohio July 10, 2017).
77

Id.

See Commission Implementing Regulation (EU) No 1352/2011, amending Council
Regulation (EC) No 1236/2005 concerning trade in certain goods which could be used for capital
punishment, torture or other cruel, inhuman or degrading treatment or punishment (imposing
trade restrictions on certain drugs); Peter Walker, Vince Cable restricts export of drug used in
US executions, The Guardian, Nov. 29, 2010 (reporting that United Kingdom Business Secretary
is imposing import restrictions on sodium thiopental); DPIC, United Kingdom Acts to Ban Export
of Lethal Injection Drug, at https://deathpenaltyinfo.org/united-kingdom-acts-ban-export-lethalinjection-drug.
78

79
DPIC, Senior U.N. Official Assails Death-Penalty Secrecy As Obstruction of Human Rights,
Nov. 28, 2017, at https://deathpenaltyinfo.org/node/6934; see www.torturefreetrade.org.
80

Statement from Hospira Regarding its halt of production of Pentothal, Jan. 21, 2011.

Pfizer, Pfizer’s Position on Use of Our Products in Lethal Injections for Capital Punishment,
Feb. 2017.
81

Fresinius Kabi, Propofol as a lethal injection could lead to EU sanctions, potentially putting
millions of U.S. patients at risk, Sept. 2017.
82

83
DPIC, United Kingdom Acts to Ban Export of Lethal Injection Drug, July 12, 2012, at https://
deathpenaltyinfo.org/united-kingdom-acts-ban-export-lethal-injection-drug.
84

2013.

Jim Salter, Missouri gov. halts first US execution by propofol, Washington Post, Oct. 11,

85
DPIC, Drugmaker Sues Nebraska, as 15 Death-Penalty States Oppose Ruling Blocking Use
of Drugs in Nevada, Aug. 9, 2018, at https://deathpenaltyinfo.org/node/7168.
86

Id.

Flora Southey, Nebraska obtained lethal injection from unauthorized source says Fresenius
Group, in-PharmaTechnologist, Aug. 22, 2018.
87

88
Bucklew v. Precythe, No. 17-8151, Brief for the Association for Accessible Medicines as
Amicus Curiae in support of neither party, July 23, 2018.
89
Bucklew v. Precythe, No. 17-8151, Brief of Amici Curiae Pharmacy, Medicine, and Health
Policy Experts in Support of Petitioner, July 23, 2018.
90
Jon Camp, North Carolina Legislature Passes Bill Limiting Execution Transparency, ABC11
News, July 29, 2015.
91

Kelley v. Johnson, 2016 Ark. 268 (June 23, 2016).

In re George Lombardi, No. 13-3699, Petition for Rehearing En Banc at 1-2 (8th Cir. Dec. 27,
2013).
92

93

Wood v. Ryan, No. 14-16310, Opinion at 21 (9th Cir. July 19, 2014).

Jim Buchy, Guest Columnist, House Bill 663 helps safe guard Ohio execution process,
Cleveland.com, Dec. 7, 2014.
94

95

74 BEHIND THE CURTAIN

Jeremy Pelzer, Death-penalty bill approved by Ohio House, Cleveland.com, Nov. 20, 2014.

Warner v. Gross, No. 14-cv-665, Defendants’ Motion for Protective Order and Brief in
Support at 13 (W.D. Okla. Oct. 14, 2014).
96

Owens v. Hill, 295 Ga. 302, 318-19 (Ga. 2014) (Benham, J. joined by Hunstein, J.,
dissenting).
97

98

Owens v. Hill, 295 Ga. 302, 318-19 (Ga. 2014) (Benham, J. joined by Hunstein, J., dissenting).

99

Wood v. Ryan, No. 14-16310, Op. at 21 (9th Cir. July 19, 2014).

100

Arkansas Department of Corrections v. Shults, No. CV-17-788 (Ark. Nov. 2, 2017).

101

Id.

Nomaan Merchant and Bailey Elise McBride, Scant Evidence of Threats to Execution
Drugmakers, Associated Press, Apr. 4, 2014.
102

103

Schad v. Brewer, No. 13-cv-2001, Op. at 11 (D. Ariz. Oct. 7, 2013).

104

Id.

Texas Dep’t of Criminal Justice v. Maurie Levin, et al., No. 03-15-00044-CV (Tex. Ct. App.
May 25, 2017).
105

106
Nomaan Merchant and Bailey Elise McBride, Scant Evidence of Threats to Execution
Drugmakers, Associated Press, Apr. 4, 2014.
107
DPIC, Tennessee Supreme Court Hears Challenge to Lethal-Injection Protocol, Oct. 5,
2018, at https://deathpenaltyinfo.org/node/7214.
108
DPIC, FBI Documents Show States’ Claims of Threats to Execution Drug Suppliers Were
Exaggerated, Aug. 30, 2016, at https://deathpenaltyinfo.org/node/6548.
109

Id.

Chris McDaniel, Oklahoma’s Attorney General Misled Supreme Court About Letter On
Execution Drug Availability, BuzzFeed, May 13, 2015; see also Glossip v. Gross, No. 14-7955, 576
U.S. __ (2015), Brief of Respondents at 11.
110

111
See Warner v. Gross, No. 14-cv-00665, Defendants’ Motion for Protective Order and Brief
in Support, Exhibit 6 (W.D. Okla. Oct. 14, 2014), Doc. 64-6.

See, e.g., In re: Execution Protocol Litigation, No. 2:11-cv-01016, Defendants’ Motion for
a Protective Order (S.D. Ohio Aug. 26, 2015), Doc. 530, Ex. D; Schad v. Brewer, No. 13-cv-02001,
Notice of Exhibit (D. Ariz. Oct. 4, 2013), Doc. 21.
112

113

Glossip v. Gross, No. 14-7955, 576 U.S. ___ (2015), Transcript of Oral Argument at 35.

Jeremy Koehler, Behind the mask of the Missouri execution doctor, Southern Illinoisan,
Sun, July 30, 2006; Cheryl Wittenauer, Missouri dismisses dyslexic executioner, Associated Press,
July 28, 2008; DPIC, Missouri Doctor Banned for Incompetence took part in Arizona’s Recent
Execution, July 28, 2008, at https://deathpenaltyinfo.org/missouri-doctor-banned-incompetencetook-part-arizonas-recent-execution.
114

115

Taylor v. Crawford, No. 2:05-CV-04173:FJG, Order at 2 (W.D. Mo. Sept. 12, 2006).

Missouri Department of Corrections Preparation and Administration of Chemicals for
Lethal Injection, revised Oct. 18, 2013, at Section A.
116

117
American Bar Association, Execution Transparency Resolution and Report to the House of
Delegates at 6 (2015).
118
Andrew Welsh-Huggins, Ohio faced execution drug shortage, Canton Rep, May 12,
2010. In fact, in March 2010, Hospira had notified the Ohio Department of Rehabilitation and
Correction that it does not support the use of its products in executions. See Letter to Ohio
Department of Rehabilitation and Corrections (sic) from Hospira, Mar. 31, 2010.
119
Michael Kiefer, E-mails detail FDA’s efforts to avoid responsibility regarding execution
drug, Arizona Republic, Aug. 20, 2011.

Jones v. Hobbs, No. CV-2010-1118, Dep. of Wendy Kelley at 50 (Pulaski Cty. Cir. Ct. Feb.
23, 2011).
120

Michael Kiefer, London storefront supplied Arizona execution drug, Arizona Republic, Jan.
9, 2011.
121

122

West v. Brewer, No. 2:11-cv-01409-NVW, Order at 14-15 (D. Ariz. Dec. 21, 2011).

75

Landrigan v. Brewer, No. 10-CV-2246, Order Granting Motion for a Temporary Restraining
Order at 14 (D. Ariz. Oct. 25, 2010).
123

124

Brewer v. Landrigan, No. 10A416 (S. Ct. Oct. 26, 2010).

Deborah Denno, Lethal Injection Chaos Post-Baze, 102 Georgetown Law Journal 1331,
1361 n.186 (2014); see also ACLU of Northern California, Timeline for California’s “Secret
Mission” for Lethal Injection Drugs, Aug. 11, 2011.
125

126
Beaty v. FDA, No. 11-cv-00289-RJL, Memorandum Opinion (Dist. D.C. Mar. 27, 2012); Cook
v. FDA, No. 12-5176, Opinion (D.C. Cir. 2013).
127

Id.

Mandakini Gahlot, How an Indian entrepreneur is helping to resist executions in the US,
PRI, July 30, 2014.
128

129
2014. Chris McDaniel, This Is The Man In India Who Is Selling States Illegally Imported
Execution Drugs, BuzzFeed News, Oct. 20, 2015.
130
Dan Rivioli, ‘Shocked’ Chief of Swiss Drug Maker Demands Nebraska Return Lethal
Injection Drug, Nov. 30, 2011.
131
Letter to Chief Justice Michael Heavican, Nebraska Supreme Court from Prithi Kochhar,
CEO, Narri, dated Nov. 22, 2011.
132

Id.

DPIC, Arizona, Texas Attempted to Import Illegal Lethal Injection Drugs Linked to Indian
Supplier with Troubling History, Oct. 23, 2015, at https://deathpenaltyinfo.org/node/6280.
133

134
Joe Duggan, Out $54,000 for lethal injection drugs, Nebraska wants its money back,
Omaha World News, Dec. 11, 2015; DPIC, Nebraska’s Attempt to Import Execution Drug Halted
in India, Sept. 18, 2015, at https://deathpenaltyinfo.org/node/6248.

Grant Schulte, Drugmaker seeks to block Nebraska from using execution drugs,
Associated Press, Aug. 8, 2018.
135

DPIC, Execution Drugs Three States Attempted to Illegally Import Have Now Expired, July
5, 2017, at https://deathpenaltyinfo.org/node/6809; DPIC, Arizona, Texas Attempted to Import
Illegal Lethal Injection Drugs Linked to Indian Supplier with Troubling History, Oct. 23, 2015, at
https://deathpenaltyinfo.org/node/6280.
136

137
Chris McDaniel, Trump Administration Blocks Shipment Of Illegal Execution Drugs,
BuzzFeed News, Apr. 20, 2017.
138
DPIC, FDA Issues Final Order Refusing to Release Illegally Imported Lethal-Injection
Drugs to States, Apr. 24, 2017, at https://deathpenaltyinfo.org/node/6743.
139

U.S. Food and Drug Administration, Compounding and the FDA: Questions and Answers.

Eric Berger, Lethal Injection Secrecy and Eighth Amendment Due Process, 55 B.C.L.
Rev. 1367, 1382-84 (2014).
140

141
DPIC, Georgia Execution Postponed Due to Problem with Execution Drugs, Mar. 3, 2015,
at https://deathpenaltyinfo.org/node/6065.
142

Ga. Code Ann. §42-5-36 (2013).

Chris McDaniel, Georgia Says “Cloudy” Execution Drug Was Just Too Cold, But Expert
Gave A Second Possible Cause, BuzzFeed News, May 11, 2015.
143

Chris McDaniel, Execution Drug Supplier Won’t Say If It Alerted Financial Crimes Unit,
BuzzFeed News, Feb. 3, 2016; see also Della Hasselle, State has explored illegally obtaining
drug for upcoming execution, The Lens, Jan. 25, 2014; Chris McDaniel & Véronique Lacapra,
Investigation: Missouri’s Execution Drug Source Raises Legal, Ethical Questions, St. Louis Public
Radio, Dec. 31, 2013.
144

145
Collin Reischman, DOC Hearing shows legislative action on executions likely, Missouri
Times, Feb. 10, 2014.
146
Chris McDaniel, Execution Drug Supplier Won’t Say If It Alerted Financial Crimes Unit,
BuzzFeed News, Feb. 3, 2016.

Chris McDaniel, Pharmacy That Mixed Executions Drugs Is Being Sold After Admitting
Numerous Violations, BuzzFeed News, Apr. 21, 2016.
147

76 BEHIND THE CURTAIN

DPIC, Missouri Executed 17 Prisoners With Drugs Secretly Obtained from ‘High-Risk’
Pharmacy Cited for Hazardous Practices, Feb. 21, 2018, at https://deathpenaltyinfo.org/
node/7021.
148

149

Id.

150

Id.

Whitaker v. Livingston, No. 4:13-cv-02901, Plaintiff’s Original Complaint (S.D. Tex. filed
Oct. 1, 2013), ECF No. 1; see also Eric Nicholson, Texas, Fresh Out of Pentobarbital, Begins
Experimenting With Execution Drugs, Dallas Observer, Oct. 2, 2013.
151

152

2013.

Jim Forsythe, Texas experimenting with secret execution drugs: lawsuit, Reuters, Oct. 3,

153
Lincoln Caplan, The End of the Open Market for Lethal-Injection Drugs, New Yorker, May
21, 2016.
154
John Caniglia, Company that makes drugs for Ohio executions says it opposes lethal
injection, The Plain Dealer, Feb. 27, 2014.
155
Della Hasselle, Hospital that supplied execution drug says prison requested it for
“medical patient”, The Lens, Aug. 8, 2014; Della Hasselle, In rush to find lethal injection drug,
prison officials turned to a hospital, The Lens, Aug. 6, 2014.
156
Della Hasselle, Hospital that supplied execution drug says prison requested it for
“medical patient”, The Lens, Aug. 8, 2014.
157
Tara Culp-Ressler, State Tricks Hospital Into Giving It Hard-To-Find Execution Drugs, Think
Progress, Aug. 8, 2017.
158
Akorn Statement, Mar. 4, 2015; Chris McDaniel, Missouri Execution Drug Purchases
Revealed, BuzzFeed News, Jan. 8, 2017.
159
DPIC, Arkansas Schedules Unprecedented Eight Executions in Eleven-Day Period, Feb.
28, 2017, at https://deathpenaltyinfo.org/node/6692.

McKesson Response to Arkansas Department of Correction’s Planned Executions,
McKesson Corp., Apr. 20, 2017.
160

McKesson Medical-Surgical Inc. v. Arkansas, No. 60CV-17-1960, Verified Complaint for
Emergency Injunctive Relief and Return of Illegally Obtained Property at 4 (Pulaski Cty. Ct. Apr.
18, 2017).
161

162

Id. at 5.

163

Id. at 3.

McKesson Response to Arkansas Department of Correction’s Planned Executions,
McKesson Corp., Apr. 20, 2017.
164

Arkansas Department of Corrections v. Shults, No. CV-17-788, Abstract, Brief, and
Addendum of Appellants at 58 (Ark. Oct. 6, 2017).
165

166
DPIC, Nevada Execution Halted On Claims State Obtained Execution Drug Through
“Subterfuge,” July 12, 2018, at https://deathpenaltyinfo.org/node/7147.
167
Richard A. Oppel Jr., Nevada Execution Is Blocked After Drugmaker Sues, New York
Times, July 11, 2018.
168
DPIC, Finding “Bad Faith,” Judge Grants Injunction Preventing Nevada From Using Drug
in Execution, Oct. 1, 2018, at https://deathpenaltyinfo.org/node/7210.
169
Bucklew v. Precythe, No. 17-8151, Brief of Amici Curiae Pharmacy, Medicine, and Health
Policy Experts in Support of Petitioner, July 23, 2018.
170
Chris McDaniel, Missouri Paid Executioners $250,000 In Cash, Possibly Violating Tax Law,
BuzzFeed News, Jan. 28, 2016.
171

2011.

Michael Kiefer, Court filing details pay of Arizona executioner, Arizona Republic, Nov. 12,

Manny Fernandez, Executions Stall as States Seek Different Drugs, New York Times, Nov.
8, 2013.
172

Jones v. Hobbs, No. CV-2010-1118, Dep. of Wendy Kelley at 68 (Pulaski Cty. Cir. Ct. Feb.
23, 2011).
173

77

174

Id. at 70-71.

Jacob Rosenberg, More on the drugs Arkansas will use to kill seven, Arkansas Times, Apr.
14, 2017.
175

176

2011.

Greg Bluestein, States look overseas for scarce execution drug, NBC News, Mar. 25,

177
Texas Prison Officials Send Virginia Sought-After Drug for Execution This Week,
Associated Press, Sept. 26, 2015.
178

Glossip v. Gross, No. 14-7955, 576 U.S. ___ (2015).

Stephanie Mencimer, Oklahoma Discovers It Used the Wrong Drug to Execute an Inmate,
Mother Jones, Oct. 8, 2015.
179

180
DPIC, Oklahoma Used Wrong Drug, Violated State Protocol, in January Execution of
Charles Warner, Oct. 8, 2015, at https://deathpenaltyinfo.org/node/6269.
181
Leslie Corbley, State, Attorneys Agree: No Executions In Oklahoma Until 2016, KGOU,
Oct. 16, 2015; Interim Report Number 14, In the Matter of the Multicounty Grand Jury, State
of Oklahoma, Case No. SCAD-2014-70 (Okla. May 19, 2016) [hereinafter “OK Grand Jury
Report”].
182

OK Grand Jury Report at 1.

DPIC, Oklahoma Grand Jury Issues Report Detailing “Blatant Violations” of the State’s
Execution Protocol, May 20, 2016, at https://deathpenaltyinfo.org/node/6463.
183

184

OK Grand Jury Report at 103.

185

Id. at 18-21.

186

Id. at 28.

187

Id. at 36-37.

188

Id. at 103.

189

Id. at 104.

190

Id. at 103.

191

Id. at 100.

192

Id.

193

Id. at 103.

DPIC, Constitutionality of the Death Penalty in America (discussing Trop v. Dulles, 356
U.S. 86 (1958)), at https://deathpenaltyinfo.org/part-i-history-death-penalty#const.
194

195

Glossip v. Gross, No. 14-7955, 576 U.S. ___ (2015), Transcript of Oral Argument at 14.

196

Id. at 15.

Glossip v. Gross, No. 14-7955, slip op. at 29, 576 U.S. ___ (2015) (Sotomayor, J.,
dissenting).
197

198

Id. at 21.

Glossip v. Gross, No. 14-7955, slip opinion at 41, 576 U.S. ___ (2015) (Breyer, J.,
dissenting).
199

200

Glossip v. Gross, No. 14-7955, slip op. at 4, 576 U.S. ___ (2015).

201

Id. at 13.

202

Id. at 16.

203

Id. at 4.

Glossip v. Gross, No. 14-7955, slip op. at 28, 576 U.S. ___ (2015) (Sotomayor, J.,
dissenting).
204

205

Glossip v. Gross, No. 14-7955, 576 U.S. ___ (2015), Transcript of Oral Argument at 21.

206

Id.

Warner v. Gross, No. 14-7955, slip op. at 5, 574 U.S. ___ (2015) (Sotomayor, J., dissenting
from the denial of application for stay).
207

78 BEHIND THE CURTAIN

Glossip v. Gross, No. 14-7955, slip op. at 29, 576 U.S. ___ (2015) (Sotomayor, J.,
dissenting).
208

Arthur v. Dunn, No. 16-602, slip op. at 1, 580 U. S. ____ (2017) (Sotomayor, J., dissenting
from the denial of certiorari).
209

210

Id.

211

Id. at 9.

212

Id. at 13.

Irick v. Tennessee, No. 18A142, slip op. at 3-5, 585 U.S. ____ (2018) (Sotomayor, J.,
dissenting from the denial of application for stay).
213

214
Abu-Ali Abdur’Rahman, et al. v. Tony Parker, et al, No. M2018-01385-SC-RDO-CV, slip op.
at 3 (Tenn. Sup. Ct. Oct. 8, 2018) (Lee, J., dissenting).
215
In re: Ohio Execution Protocol, No. 17-3076 at 31-32 (6th Cir. Apr. 4, 2017) (Stranch, J.,
concurring).
216
DPIC, Medical Expert: Billy Ray Irick Tortured to Death in Tennessee Execution, Sept. 14,
2018, at https://deathpenaltyinfo.org/node/7198
217
Abu-Ali Abdur'Rahman, et al. v. Tony Parker, et al, No. M2018-01385-SC-RDO-CV, slip op.
at 4-5 (Tenn. Sup. Ct. Oct. 8, 2018) (Lee, J., dissenting).
218
Natalie Neysa Alund, Tennessee's electric chair procedures ahead of Zagorski execution,
Tennessean, Oct. 12, 2018.
219
In re: Ohio Execution Protocol, No. 17-3076 at 31 (6th Cir. Apr. 4, 2017) (Stranch, J.,
concurring).
220

Atkins v. Virginia, 536 U.S. 304, 316 n.21 (2002).

National organizations that have issued statements against the involvement of members
in executions include: American Academy of Physician Assistants; American Board of
Anesthesiology; American College of Correctional Physicians; American College of Physicians;
American Correctional Health Services Association; American Medical Association; American
Nurses Association; American Pharmacists Association; American Psychiatric Association;
American Public Health Association; American Society of Anesthesiologists; Association for
Accessible Medicines; National Association of Emergency Medical Technicians.
221

State organizations that have issued statements against the use of medicine for purposes
of executions include: California Medical Association; Nevada State Medical Association; New
Hampshire Medical Society; North Carolina Medical Board.
International organizations that have issued statements against the use of medicine
for purposes of executions include: International Academy of Compounding Pharmacists;
International Council of Nurses; World Medical Association; World Psychiatric Association. See
Professional Association Policies, Lethal Injection Information Center.
Companies that have issued statements opposing the use of their products in
executions include: Abbott Laboratories; AbbVie Inc.; Akorn; Alvogen Inc.; American Regent,
Inc.; AmerisourceBergen Corp; Athenex; AuroMedics Pharma LLC; Baxter International; B.
Braun Melsungen; Custopharm; Fresenius Kabi; Ganpati Exim Pvt Ltd; Gland Pharma Limited;
GlaxoSmithKline; Hikma Pharmaceuticals; Jiangsui Hengrui; Johnson & Johnson; Jonakayem
Pharma Formulation (OPC) Pvt. Ltd.; Lilly Healthcare; Lundbeck; McKesson Corporation;
Mylan Pharmaceuticals Inc; Naari Pharma Pvt. Ltd.; Par Pharmaceutical; Pfizer; Renaissance
Lakewood, LLC; Roche Holding AG; Sagent Pharmaceuticals; Sandoz; Shrenik Pharma Limited;
Sun Pharmaceutical Industries Ltd; Tamarang Pharmaceuticals; Teva Pharmaceutical Industries;
X-Gen Pharmaceuticals Inc. See Industry Statements, Lethal Injection Information Center (June
2018).
222

223
Glossip v. Gross, No. 14-7955, Brief of Sixteen Professors of Pharmacology as Amici
Curiae in Support of Neither Party (U.S. Mar. 16, 2015).
224
Arthur v. Dunn, No. 16-602, slip op. at 16-17, 580 U. S. ____ (2017) (Sotomayor, J.,
dissenting from the denial of certiorari).
225
Justin Peters, Florida’s Barbaric, Disgusting Decision to Execute a Prisoner Using an
Untested Drug, Slate, Oct. 15, 2013; Kristine Crane, Court to examine use of new execution
drug, Gainesville Sun, Nov. 4, 2013.

79

226

Susan Jacobson, Couple’s killer silent before his execution, Sun Sentinel, Apr. 24, 2014.

Compare, Morgan Watkins, Happ executed using new drug, Gainesville Sun, Oct. 15,
2013 (“The white sheet covering him rose and fell slightly with each breath.”) with Abdool v.
Palmer, No. 3:14-cv-1147, Affidavit of Richard Kiley at 2 (M.D. Fla.) (filed Dec. 1, 2013) (“The
sheet was not draped over the body, but instead appeared to be tented over Mr. Kimbrough
such that you could not observe any movement of Mr. Kimbrough underneath the sheet.”).
227

228

Affidavit of Richard Kiley at 3.

DPIC, State by State Lethal Injection, at https://deathpenaltyinfo.org/state-lethalinjection.
229

230
Jason Dearen, Florida executes man for pair of killings dating to 1991, Associated Press,
Nov. 9, 2017.
231
Jason Dearen, Florida man yells ‘murderers!’ as he’s executed for slaying, Associated
Press, Feb. 22, 2018; News Service of Florida, Justices block execution in Miami-Dade Murder,
Florida Politics, Aug. 11, 2018.
232
Ed Pilkington, Doctor angry Ohio executed inmate despite 'horror' warning, The
Guardian, Jan. 20, 2014.
233
Ben Crair, Exclusive Emails Show Ohio's Doubts About Lethal Injection, New Republic,
Aug. 17, 2014.
234
Alan Johnson, Inmate’s death called ‘horrific’ under new, 2-drug execution, Columbus
Dispatch, Jan. 16, 2014.
235

Family Sues in Protracted Ohio Execution, Associated Press, Jan. 25, 2014.

Lawrence Hummer, I witnessed Ohio’s execution of Dennis McGuire. What I saw was
inhumane, The Guardian, Jan. 22, 2014.
236

237
Matt Pearce, Ohio won’t use controversial drug combo for executions anymore, Los
Angeles Times, Jan. 8, 2015.
238
Andrew Welsh-Huggins, Ohio plans January execution using 3-drug combo, Associated
Press, Oct. 3, 2016.
239
DPIC, Federal Magistrate Judge Rules Ohio Lethal Injection Protocol Unconstitutional,
Jan. 26, 2017, at https://deathpenaltyinfo.org/node/6664.

DPIC, Federal Appeals Court Upholds Ohio Lethal-Injection Process, Vacates Execution
Stays, June 29, 2017, at https://deathpenaltyinfo.org/node/6807.
240

DPIC, Ohio Executes Ronald Phillips, Resumes Executions After 3½-Year Pause, July 26,
2017, at https://deathpenaltyinfo.org/node/6826.
241

242
In re: Ohio Execution Protocol Litigation, 2:11-cv-01016, Declaration of Carol Wright (S.D.
Ohio Sept. 26, 2017).
243

2014.

Andrew Cohen, Oklahoma just neutered its state Supreme Court, The Week, Apr. 29,

244
Katie Fretland, Scene at botched Oklahoma execution of Clayton Lockett was 'a bloody
mess', The Guardian, Dec. 13, 2014.
245

Id.

Oklahoma Dep’t of Public Safety, Interview of Warden Anita Trammell (Part 1), at 34, June
2, 2014.
246

247
Oklahoma Dep’t of Public Safety, Interview of Warden Anita Trammell (Part 2), at 18, June
2, 2014.
248

Oklahoma Dep’t of Public Safety, Interview of Physician, at 7, June 3, 2014.

Oklahoma Dep’t of Public Safety, The Execution of Clayton D. Lockett, Case Number 140189SI at 23.
249

250
Oklahoma Dep’t of Public Safety, Second Interview of Paramedic-Executioner at 22, July
31, 2014.
251

80 BEHIND THE CURTAIN

Oklahoma Dep’t of Public Safety, Interview of Paramedic-Executioner at 8, May 23, 2014.

252
Katie Fretland, Scene at botched Oklahoma execution of Clayton Lockett was 'a bloody
mess', The Guardian, Dec. 13, 2014.
253

2014.
254

Oklahoma Dep’t of Public Safety, Interview of Paramedic-Executioner, at 9-10, May 23,
Id. at 100.

Oklahoma Dep’t of Public Safety, Interview of Warden Anita Trammell (Part 2), at 25, June
2, 2014.
255

256

Oklahoma Dep’t of Public Safety, Interview of Physician, at 7, June 3, 2014.

Katie Fretland, Scene at botched Oklahoma execution of Clayton Lockett was 'a bloody
mess', The Guardian, Dec. 13, 2014.
257

258

Oklahoma Dep’t of Public Safety, Interview of Physician, at 15, June 3, 2014.

Ziva Branstetter, Eyewitness account: A minute-by-minute look at what happened during
Clayton Lockett’s execution, Tulsa World, May 1, 2014.
259

260
Glossip v. Gross, No. 14-7955, Testimony of Lisbeth Exon from Dec. 17-19, 2014, Joint
Appendix at 357.
261

Id.

Liliana Segura, Will the Supreme Court Look Behind the Curtain of Lethal Injection?, The
Intercept, Apr. 30, 2015; Warner v. Gross, No. 14-cv-00665, Transcript of Court’s Ruling at 14
(W.D. Okla. Dec. 22, 2014).
262

263
Ziva Branstetter, Eyewitness account: A minute-by-minute look at what happened during
Clayton Lockett’s execution, Tulsa World, May 1, 2014.
264

Oklahoma Dep’t of Public Safety, Interview of Physician, at 7, June 3, 2014.

Oklahoma Dep’t of Public Safety, Interview of Director Robert Patton, at 12 (starting at
10:16 am), June 3, 2014.
265

266
Glossip v. Gross, No. 14-7955, Testimony of Lisbeth Exon from Dec. 17-19, 2014, Joint
Appendix at 357.
267
Jeffrey E. Stern, The Cruel and Unusual Execution of Clayton Lockett: The untold story of
Oklahoma's botched lethal injection—and America’s intensifying fight over the death penalty,
The Atlantic, June 2015.
268
Oklahoma Dep’t of Public Safety, The Execution of Clayton D. Lockett, Case Number
14-0189SI at 11-12; Letter to Oklahoma Governor Mary Fallin from Robert Patton, Director
Oklahoma Department of Corrections, May 1, 2014.

Oklahoma Dep’t of Public Safety, The Execution of Clayton D. Lockett, Case Number 140189SI at 12.
269

270

Id. at 11-12.

Oklahoma Dep’t of Public Safety, Interview of Warden Anita Trammell (Part 2), at 13, June
2, 2014; Cary Aspinwall & Ziva Branstetter, Execution of Clayton Lockett described as 'a bloody
mess,' court filing shows, Tulsa World, Dec. 14, 2014.
271

272
Oklahoma Dep’t of Public Safety, The Execution of Clayton D. Lockett, Case Number 140189SI.
273

2014.

Oklahoma Dep’t of Public Safety, Interview of Paramedic-Executioner, at 34, May 23,

274
Letter to Oklahoma Governor Mary Fallin from Robert Patton, Director Oklahoma
Department of Corrections, May 1, 2014.
275

Peter Baker, Obama Orders Policy Review on Executions, New York Times, May 2, 2014.

Gwen Ifill, Interview, Holder: DOJ needs Congress’ support to reduce immigration
backlog, PBS (transcript), July 31, 2014.
276

277
Chris Casteel, Sen. Tom Coburn: I don’t like the death penalty but it’s a deterrent, The
Oklahoman, May 1, 2014.
278
DPIC, Oklahoma Grand Jury Issues Report Detailing “Blatant Violations” of the State’s
Execution Protocol, May 20, 2016, at https://deathpenaltyinfo.org/node/6463.

81

279

Wood v. Ryan, No. 14-16310, Opinion (9th Cir. July 19, 2014).

Ryan v. Wood, No. 14A82, Application to Vacate Stay of Execution (U.S. filed July 21,
2014).
280

281
Ryan v. Wood, No. 14A82, Order (U.S. July 22, 2014) (vacating the grant of a conditional
preliminary injunction by the Ninth Circuit).
282
Michael Kiefer, Reporter describes Arizona execution; 2 hours, 640 gasps, Arizona
Republic, July 23, 2014.
283

Id.

DPIC, Arizona Botches Execution of Joseph Wood, July 24, 2014, at https://
deathpenaltyinfo.org/node/5828.
284

285
Michael Kiefer, Reporter describes Arizona execution; 2 hours, 640 gasps, Arizona
Republic, July 23, 2014.
286
Wood v. Ryan, No. 14-cv-1447, Motion for EMERGENCY Stay of Execution (D. Ariz. July
23, 2014).
287
Wood v. Ryan, No. 14-cv-1447, Transcript of Telephonic Motion for Emergency Stay of
Execution at 7 (D. Ariz. July 23, 2014).
288

Id. at 16.

Fernanda Santos, Executed Arizona Inmate Got 15 Times Standard Dose, Lawyers Say,
New York Times, Aug. 1, 2014; Arizona Department of Corrections, Correctional Service Log,
Execution of Joseph Wood, July 23, 2014.
289

290

Towery v. Brewer, No. 12-15381 (9th Cir. Feb. 28, 2012).

Ed Pilkington & Amanda Holpuch, Experts decry 'failed experiment' with new death
penalty drug combinations, The Guardian, July 25, 2014 (quoting all three experts).
291

292
Ed Pilkington & Amanda Holpuch, Experts decry ‘failed experiment’ with new death
penalty drug combinations, The Guardian, July 25, 2014.
293

Id.

First Amendment Coalition of Arizona, Inc. v. Ryan, No. 2:14-cv-01447, Order for
Dismissal of Claim One (D. Ariz. Dec. 22, 2016).
294

295

Guardian News & Media LLC v. Ryan, No. 2:14-cv-02363, Order (D. Ariz. Dec. 21, 2016).

DPIC, Ronald Smith Heaves and Coughs During Alabama Execution After Tie Vote in
Supreme Court Denies Him A Stay, Dec. 9, 2016, at https://deathpenaltyinfo.org/node/6623.
296

297
Kent Faulk, Alabama Death Row inmate Ronald Bert Smith heaved, coughed for 13
minutes during execution, AL.com, Dec. 8, 2016.
298

Sworn Declaration of Spencer J. Hahn, dated Dec. 13, 2016.

299

Id.

300

Id.

301

Id.

Kent Faulk, Federal public defender says Alabama execution 'botched'; prison officials
say protocol followed, AL.com, Dec. 9, 2016.
302

303
Kim Chandler, Judge: Alabama May Keep Execution Records Secret, Associated Press,
May 16, 2017.
304

Sworn Declaration of Spencer J. Hahn, dated Dec. 13, 2016.

Connor Sheets, 'I hate you': Inside the execution chamber as Alabama cop-killer put to
death, AL.com, Oct. 20, 2017.
305

306

Id.

307

Id.

Frank Green, Ricky Gray’s legal team raises ‘grave concern’ with execution procedure that
took more than 30 minutes, Richmond Times-Dispatch, Jan. 19, 2017; Gary A. Harki, What it
was like to watch Ricky Gray put to death, Virginian-Pilot, Jan. 21, 2017.
308

82 BEHIND THE CURTAIN

309

2017.

Gary A. Harki, What it was like to watch Ricky Gray put to death, Virginian-Pilot, Jan. 21,

310
Frank Green, Ricky Gray’s legal team raises ‘grave concern’ with execution procedure that
took more than 30 minutes, Richmond Times-Dispatch, Jan. 19, 2017.

Frank Green, Pathologist says Ricky Gray's autopsy suggests problems with Virginia's
execution procedure, Richmond Times-Dispatch, July 7, 2017.
311

312

2017.
313

Virginia inmate executed despite arguments against drug 'cocktail', Reuters, Jan. 18,
Lawyers for executed Virginia man say he may have died painfully, Reuters, Jan. 19, 2017.

DPIC, Independent Pathologist Says Autopsy Reveals Problems With Virginia's Execution
of Ricky Gray, July 10, 2017, at https://deathpenaltyinfo.org/node/6813
314

315

Lawyers for executed Virginia man say he may have died painfully, Reuters, Jan. 19, 2017.

Frank Green, Ricky Gray’s legal team raises ‘grave concern’ with execution procedure that
took more than 30 minutes, Richmond Times-Dispatch, Jan. 19, 2017.
316

317

Lawyers for executed Virginia man say he may have died painfully, Reuters, Jan. 19, 2017.

Frank Green, Ricky Gray’s legal team raises ‘grave concern’ with execution procedure that
took more than 30 minutes, Richmond Times-Dispatch, Jan. 19, 2017.
318

319
Id.; see also Press Release, ACLU-VA Tells Governor to Stop All Executions and Update
Protocols for Transparency, Mar. 17, 2017.
320
Frank Green, After Ricky Gray execution, Virginia Department of Corrections changes
execution protocol, Richmond Times-Dispatch, Mar. 15, 2017.
321

Id.

Associated Press, Virginia executes William Morva using controversial three-drug mixture,
The Guardian, July 7, 2017.
322

323
Vernon Freeman, Jr. & Jon Burkett, William Morva executed by lethal injection for 2006
killings, WTVR.com, July 6, 2017.
324

Id.

DPIC Analysis, What is the Most Executions Conducted in the U.S. in the Shortest Time
Span?, at https://deathpenaltyinfo.org/Most_US_Executions_in_Shortest_Time.
325

326
DPIC, Background on Arkansas April 2017 Executions, at https://deathpenaltyinfo.org/
node/6722.
327
McGehee v. Hutchinson, No. 4:17-cv-179, Preliminary Injunction Order (E.D. Ark. Apr. 15,
2017).
328

McGehee v. Hutchinson, No. 17-1804, Opinion (8th Cir. Apr. 17, 2017).

Ultimately, because some prisoners obtained stays of executions, Arkansas only carried
out four of the eight executions, but did so in seven days using midazolam as part of a threedrug formula.
329

330
Jessi Turnure, Media Witness Relives Execution of Marcel Williams, Arkansas Matters, Apr.
26, 2017.

Sarah Chaffin, Arkansas death-row inmate Jack Jones executed, KATV ABC-7, Apr. 24,
2017; Marcel Williams v. Kelley, No. 5:17-cv-00103-KGB, Transcript of Hearing on Emergency
Motion to Stay Execution (E.D. Ark. Apr. 24, 2017); Jessi Turnure, Media Witness Relives
Execution of Marcel Williams, Arkansas Matters, Apr. 26, 2017; Jacob Rosenberg, Watching an
execution: A reporter's account of witnessing the execution of Marcel Williams, Arkansas Times,
Apr. 26, 2017; Declaration of Jamie Giani, Apr. 25, 2017; Declaration of Cassandra Belter, Apr.
28, 2017.
331

332
Internal Affairs Log for Ledell Lee; Internal Affairs Log for Marcel Williams; Internal Affairs
Log for Jack Jones; Internal Affairs Log for Kenneth Williams.
333
DPIC, Lawyers Call for Investigation of “Horrifying” Arkansas Execution After Witnesses
Report “Coughing, Convulsing,” Apr. 28, 2017, at https://deathpenaltyinfo.org/node/6752.
334

Press Release, Statement of Shawn Nolan, Apr. 28, 2017.

83

335
Mark Berman, Fourth Arkansas execution in eight days prompts questions about inmate’s
movements, Washington Post, Apr. 28, 2017.
336
DPIC, Arkansas, Nevada Obtain New Supplies of Drugs, Plan to Carry Out Two
Questionable Executions, Aug. 18, 2017, at https://deathpenaltyinfo.org/node/6845.

DPIC, Arkansas Supreme Court Orders Partial Disclosure of Information on State’s LethalInjection Drugs, Nov. 3, 2017, at https://deathpenaltyinfo.org/node/6915.
337

John Moritz, Arkansas not actively seeking drug needed for executions, prisons official
confirms, Arkansas Democrat Gazette, July 18, 2018.
338

339
Irick v. Tennessee, No. 18A142, 585 U.S. ____ (2018) (Sotomayor, J., dissenting from the
denial of application for stay) at 3.
340
Irick v. Tennessee, No. 18A142, 585 U.S. ____ (2018) (Sotomayor, J., dissenting from the
denial of application for stay) at 6.
341
DPIC, Medical Expert: Billy Ray Irick Tortured to Death in Tennessee Execution, Sept. 14,
2018, at https://deathpenaltyinfo.org/node/7198.
342
Joe Duggan, Transparency concerns surface after Nebraska's first lethal injection
execution, Omaha World-Herald, Aug. 18, 2018; JoAnne Young, Questions surround what
happened in 14 minutes witnesses were blocked from seeing Nebraska execution, Lincoln
Journal-Star, Aug. 19, 2018; Brent Martin, Law professor says not enough known to evaluate
Moore execution, Nebraska Radio Network, Aug. 17, 2018; Ken Ritter, Nevada tells court
Nebraska execution had no complications, Associated Press, Aug. 17, 2018.
343
Joe Duggan, Transparency concerns surface after Nebraska’s first lethal injection
execution, Omaha World-Herald, Aug. 18, 2018.
344
Arthur v. Dunn, No. 16-602, at 15 (2017) (Sotomayor, J., dissenting from the denial of
certiorari in Alabama case); see also McGehee v. Hutchinson, No. 16A1003 (16-8770) (2017)
(Sotomayor, J., dissenting from the denial of the application for stay and denial of certiorari in
Arkansas case); Otte v. Morgan, No. 17A78 (17-5198) (2017) (Sotomayor, J., dissenting from
the denial of the application for stay and denial of certiorari in Ohio case).
345
Mark White and Gerald Kogan, On death penalty drugs, what does NC have to hide?,
News & Observer (NC), Aug. 17, 2015.

84 BEHIND THE CURTAIN

The Death Penalty Information Center is a national non-profit organization serving the media and the public with
analysis and information on issues concerning capital punishment. Founded in 1990, DPIC promotes informed
discussion of the death penalty by preparing in-depth reports, conducting briefings for journalists, and serving as a
resource to those working on this issue. DPIC is funded through the generosity of individual donors and foundations,
including the Roderick MacArthur Justice Center; the Open Society Foundations; Atlantic Philanthropies; the Proteus
Action League; the Themis Fund; the Tides Foundation; and M. Quinn Delaney.

DEATH PENALTY INFORMATION CENTER
Washington, D.C
.
www.deathpenaltyinfo.com

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