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States Really Don't Want You To Know How They Execute People. This Lawsuit Wants To Change That.

Missouri executed another man by lethal injection this week amid mounting criticism nationwide regarding secrecy around execution drugs.

by Mary Emily O'Hara
Sep 12 2014, 5:50pm

Photo by AP/Nate Jenkins

Missouri's Earl Ringo fought his death sentence as hard as he could — but early Wednesday morning, he lost. Shortly after midnight, Ringo's more than a decade in prison for a 1998 double murder ended with a lethal injection. But what exactly he was injected with is a mystery.

According to Ringo's lawyer, Richard Sindel, the death row inmate asked not to be injected with the controversial drug midazolam — thought to contribute to prolonged suffering in three recent executions in Oklahoma, Ohio, and Arizona — but neither Sindel nor anyone else outside of Missouri's Department of Corrections knows what happened in the execution chamber. The state's execution guidelines only sanction the drug pentobarbital, but recent reports have raised concerns that midazolam is also being administered. 

"Because there is an IV line put into the inmate, they can inject anything they want," Sindel told VICE News. "He's strapped to a table and can't do anything about it. We were told he refused it but we don't know for sure."

On May 15, the Reporters Committee for Freedom of the Press, the Missouri chapter of ACLU, and St. Louis Public Radio reporter Chris McDaniel filed suit against the Missouri Department of Corrections (DOC) for violating freedom of information laws by withholding information on lethal injections.

Through separate freedom of information requests, McDaniel received documents showing the state had not only withheld information, but lied about the injections. In a September 3 investigative report, McDaniel revealed that midazolamwas part of every one of the nine executions that occurred in the state between November 2013 and July 2014 — despite the fact that when specifically asked about midazolam, DOC Director George Lombardi swore under oath that, "We will not use those drugs."

In response to the reports, according to the Associated Press, an official reaffirmed pentobarbital was the only drug used in the execution, but that the administration of sedatives was allowed beforehand — he did not name the sedative that the state employs.

It's this type of secrecy that has American Civil Liberties Union (ACLU) and death row attorneys around the country alarmed. On Thursday, the Pennsylvania chapter of the ACLU filed the latest in a string of multi-state lawsuits demanding that state corrections officials in the state increase transparency regarding execution protocols and the sources of drugs used in lethal injections.

Ohio just doubled down on a drug cocktail that tortured a death row inmate before killing him. Read more here.

Cassandra Stubbs from the ACLU's Capital Punishment Project told VICE News that in a historical context, details surrounding executions used to be more out in the open.

"Historically, we have always had information about executions. When we used to have hangings, they would post information about the rope and who made it," Stubbs explained. "This move to hide information about executions is all totally new, ahistorical, and in violation of the First Amendment."

Even more recently, Stubbs said corrections officials released information about what drugs were being used in executions and where those drugs came from.

But in 2011, suppliers in the European Union discovered that Sodium Thiopental was being used as the primary lethal injection drug in the US. The EU placed a ban on exporting the drug, along with a list of other items that it determined to be strictly used for "capital punishment, torture, or other cruel, inhuman, or degrading treatment or punishment."

The thiopental ban forced states to develop alternate lethal injection cocktails. Now, many states are veering toward compound drugs, the quality of which can differ between batches. In response to secrecy around the drugs used to execute Missouri's Michael Taylor this February, Eighth Circuit Court Judge Kermit Bye stated that due to "the absolute dearth of information Missouri has disclosed to this court, the 'pharmacy' on which Missouri relies could be nothing more than a high school chemistry class."

Sri Lanka can't get its executioner to hang around. Read more here.

Missouri is just one of several US states with complicated legal statutes around revealing execution protocols. Missouri's states that while the identities of people involved in executions is a total secret "not subject to discovery, subpoena, or any other means of legal compulsion," the statute does claim, "the administration of lethal gas or lethal chemicals is an open record."

The Department of Corrections office in Missouri did not respond to email or phone requests for comment.

Over the past few years, other states have tightened information around lethal injections. In 2013, a Colorado district court ruled that the state DOC could withhold information about a lethal drug source, stating: "releasing the information could possibly expose the pharmacy and its employee to ridicule" and "raise safety concerns." This May, the Texas Attorney General issued an opinion that also allowed the identities of pharmaceutical suppliers to be withheld.

The long Arizona execution was lawful because the law is flawed. Read more here.

In Florida, Georgia, Oklahoma, South Dakota, and Tennessee, recently amended state codes prohibit the release of information about anyone who compounds, supplies, manufactures, or administers drugs for lethal injections.

In addition to the secrecy revolving around midazolam, the state-sanctioned pentobarbital is not without controversy. Sindel, who also represents another 22 other Missouri death row inmates in a class action suit, told VICE News there aren't any executions currently slated. The next in line, however, is another plaintiff in the suit, Russell Bucklew, whose concerns revolve around the use of pentobarbital. He suffers from a congenital disorder that causes his blood vessels to be malformed and occasionally bleed. According to Sindel, Bucklew is afraid that an injection of pentobarbital could cause an extremely painful reaction.

When Oklahoma's Michael Lee Wilson was injected with pentobarbital this January, his reported last words were "I can feel my whole body burning." Since then, advocates for death row inmates have suggested that there could be something wrong with the "cocktail" method of lethal injections, or with the drugs themselves. 

The FDA-approved version of pentobarbital is currently not available to corrections officials, because its Danish manufacturer decided in 2011 to ban the drug's use in state-sponsored executions. Pentobarbital can only be acquired from compounding pharmacies — which are not approved by the FDA. Compounding pharmacies must be licensed by state pharmacy boards, and are accused of lacking in quality control and standards.

In 2012, a Massachusetts compounding pharmacy was found responsible for 64 deaths after it helped spread fungal meningitis through steroid injections. After the scare, the state forced 11 compounding pharmacies to shut down and pass new regulations around inspection and reporting, but those only applied within Massachusetts.

It's that kind of health risk that has the ACLU and other groups clamoring to get answers.

"The information sought by our clients is central to today's debate about capital punishment. If the drugs are not made properly, they will not work properly, and the public should be very concerned about that possibility given the gruesome executions we have heard about in other states," said Mary Catherine Roper, senior staff attorney at the ACLU of Pennsylvania.

Besides being a matter of capital punishment, information about death penalty protocols is constitutionally protected by the Eighth Amendment, which bans cruel and unusual punishment even in cases of execution of the most violent offenders. But without knowing exactly what the method of execution is, it's impossible to determine whether it fits humane standards.

"It's enshrined in our constitution that we will not inflict cruel and unusual punishment," Stubbs told VICE News, "The torturing of death row inmates says terrible things about us, that we would be willing to tolerate that. Losing your life is the penalty that we as a society have inflicted on death row inmates. We have not added torture as an additional punishment."

Follow Mary Emily O'Hara on Twitter: @maryemilyohara