How to kill a man: I’d tell you but then I’d have to kill you

Warren Lee Hill, mentally retarded and thus unqualified for execution, is scheduled to be executed on Saturday. That’s because in Georgia, they just don’t want to believe someone is mentally retarded and can’t be executed, even if an inmate is given the highest (and most likely unconstitutional burden) to prove his own retardation and surpasses that.

In fact, they want to kill him so badly, that they have obtained the lethal injection drugs from an unnamed pharmacy and made that pharmacy’s identity a confidential state secret.

But that’s not all. It’s such an important state secret that the statute forbids its disclosure even under process of law. Which means that pursuant to that Georgia statute, even a court cannot force the executive to reveal the name of the pharmacy.

Stunning. The first thing I thought of when I read this was Marbury v. Madison, that most seminal of seminal cases that established the authority of the judiciary as an independent and equal branch of government: the watcher of the legislators and the arbiter of the Constitutionality of the laws.

Since then, I don’t think I have ever seen such a shocking end-run around the power of the judiciary and a denial of due process. (Except, well, you know.)

Think about this. The State wants to kill a man and they are so desperate to do it that they will make the method of that execution a state secret so one can question them about it or challenge that procedure.

And challenge they should, because the lethal injection procedure is cruel. This isn’t the first time Georgia has pulled this shit. In 2011, they illegally obtained drugs from London and were shut down when the DEA raided their drug supply. The drugs they got weren’t FDA approved and were tainted. The following are three examples, taken from Hill’s lawsuit (embedded below), which will be heard on Thursday:

Both executions that used this supply of illegally imported, compromised drugs resulted in significant pain and suffering for the individuals executed. In Brandon Rhodes’ case, his eyes remained open for the entirety of his execution,indicating that the illegally imported sodium thiopenthal used in his execution was sub-potent, leading to an “agonizing” execution for Mr. Rhode. In the case of Emmanuel Hammond, Mr. Hammond’s eyes also remained open, and appeared to be trying to communicate throughout during the first part of his execution.

In the summer of 2011, Georgia switched its protocol from a three-drug protocol using sodium thiopenthal as the first drug in that protocol to a three-drug protocol utilizing pentobarbital as the first drug in the injection cocktail. The first execution to take place with this protocol was widely reported by objective, third-party sources to have caused tremendous suffering for Mr. Blankenship, the person executed. The media reports of Mr. Blankenship’s execution note that he grimaced, appeared to gasp for air, convulsed, and like Mr.Hammond and Mr. Rhode, remained with his eyes open.

Among the pro-death penalty jurisprudence, this is one area that exhibits some humanity: we will execute people, but we will execute them humanely. So the Supreme Court said in Baze v. Rees that a lethal injection protocol can be cruel and unusual punishment. There have been challenges to the drug protocols of various states and anti-death penalty activists have pressured drug companies into not providing the lethal cocktail.

And so, afraid of not having a legal source of FDA approved drugs, the Georgia DOC turned to its legislature to suddenly making the whole thing secret and unreviewable. So the man who is to be put to use using this magic concoction has no way of knowing if the drugs are safe or if they’re going to make him convulse in agonizing pain while he may or may not die.

It’s one thing for a state to have state secrets, but as Hill’s brief points out, they all have de-classification clauses, i.e., a mechanism to make the information available to the public and the courts under the right circumstances.

Not this one:

(1) As used in this subsection, the term ‘identifying information’ means any records or information that reveals a name, residential or  business address, residential or business telephone number, day and month of birth, social security number, or professional qualifications.

(2) The identifying information 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  shall be confidential and shall not be subject to disclosure under Article 4 of Chapter 18 of Title 50 or under judicial process. Such information shall be classified as a confidential state secret.

The press cannot get this pursuant to a Freedom of Information request and no court in Georgia or the United States can order it be revealed. If they can do it for a lethal injection protocol today, what’s next? Maybe they make the process whereby the decision to seek the death penalty is made a state secret. Why stop there? Search warrants become a state secret. Confidential witnesses are state secrets. If you see something, say something and we won’t tell anyone that you told. Do you have a chill running down your spine yet?

If they’re that desperate to keep something secret, doesn’t it make you wonder what they’re hiding? And do you have any trust left in Government? How do you know there isn’t a secret law gunning for you? How could you?

This isn’t even taking into account the madness of executing him despite his mental retardation and the absurd standard imposed by Georgia in the wake of Atkins v. Virginia and SCOTUS’ failure to act on his petition that’s pending before it.

2 thoughts on “How to kill a man: I’d tell you but then I’d have to kill you

  1. Pingback: Cruel and unusual: the new lows we hit in our thirst for blood | a public defender

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