The legal battle over lethal injection, which comes before the Supreme Court on Monday, has been conducted in unusual secrecy, with courts permitting states across the country to keep from lawyers and the public precisely how death row inmates are executed.
In state after state, defense lawyers contending that the execution method inflicts unnecessary pain complain that judges have denied them access to crucial information, including the identity of executioners and details about the drug cocktail used in the fatal injections.
State officials have successfully argued that releasing such information could compromise prison security and the safety of personnel. But lawyers for death row inmates say the restrictions have hampered their efforts to question not only the drugsbut how they are administered.
They say lethal injection is carried out by sloppy, untrained prison personnel that are unqualified to conduct the sophisticated medical procedure. During a 2006 execution in Florida, for example, Angel Nieves Diaz, 55, appeared to grimace in pain and struggle for breath for a half-hour until a second round of lethal drugs was administered. Yet lawyers for death row inmates still were not allowed to question the execution team.
The Supreme Court will hear oral arguments in a Kentucky case. At issue is whether the execution method violates the constitutional ban on cruel and unusual punishment. Executions across the country have been on a de facto moratorium since the Supreme Court agreed in September to consider the issue.
“What we know about how states and the federal government currently execute people in the United States is deeply troubling,” Alison J. Nathan, a Fordham University law professor, wrote in an article recently published online in the University of Pennsylvania Law Review. “But the real danger of lethal injection as currently practiced lies in what we do not know.”
It is not clear whether access to information will be discussed during the hearing. But legal experts said it could come up when justices question the lawyers.
When attorneys in some cases were allowed to examine lethal injection closely, they uncovered evidence that convinced federal judges in California, Missouri and Tennessee that the waylethal injection is carried out is unconstitutional.