Can a State Carry Out the Death Penalty in Secret?

The Georgia Supreme Court ponders whether death-row inmates can demand to know about the drugs being used to kill them—a question with profound national significance.
Darren Whiteside/Reuters

On Monday morning, while much of the rest of the country was observing Presidents' Day, the justices of the Georgia Supreme Court were hearing oral arguments. The first case on the docket was Owens v. Hill, a death-penalty case of enormous significance not just in Georgia but around the nation. Before the court got to work asking veteran lawyers about the state's new lethal-injection-secrecy law, the justices got to work swearing in a crop of new lawyers to the Georgia bar.

The ceremony, similar to other ones around the nation, was brief and cordial. The chief justice of the Georgia Supreme Court, Hugh P. Thompson, called the baby lawyers before the bench, administered an oath, wished them well, and then turned the proceedings over to one of his colleagues, Justice David E. Nahmias, who offered a few words of encouragement to the latest generation of advocates to be sworn to practice law in the state. Acting the part of the kindly uncle, he told them:

The best lawyers, I think, are the best predictors of the law but nobody gets it perfect. When you get it wrong, you just try to admit it, and do better the next time, and I hope you always remember that when we decide a case that isn't favorable to your clients, we didn't try to do it to hurt you and your clients. We are just trying to get the law right as best we can.

It's unlikely that any of those new lawyers stuck around to watch oral arguments, but if they had they would have received an immediate lesson in what the advice means in the real life of the law (spoiler alert: not much). For it was Nahmias himself, a former federal prosecutor and clerk to Justice Antonin Scalia, who quickly turned from uncle to interrogator, relentlessly questioning a defense attorney and justifying and defending Georgia's remarkable efforts to hide the means it seeks to employ to execute Warren Lee Hill. (For more Atlantic coverage of this case, see here, here, here, here, here, and here).

Warren Lee Hill 

In 2002, in a decision styled Atkins v. Virginia, the U.S. Supreme Court held that it was "cruel and unusual punishment" under the Eighth Amendment to execute prisoners whose intellectual disabilities precluded them from comprehending the nature of the punishment against them. But in a compromise that has haunted the ruling ever since—and that is itself the subject of a pending case in Washington—the justices permitted death-penalty states to determine and define for themselves who is and who is not "mentally retarded."*

In Georgia, that determination is uniquely skewed in favor of the state and against any death-row inmate who is intellectually disabled. The condemned must establish, beyond a reasonable doubt, that he falls under the Atkins rubric. Although Georgia was somewhat progressive before Atkins in recognizing that some mentally disabled inmates were not suitable for execution, Georgia today is an outlier; the only state that now requires such a high burden of proof. What the Hill case has shown, among other things, is that it is virtually impossible to achieve that level of certainty over a diagnosis ("mental retardation") that is by definition highly subjective.

Actually, the Hill case tells us more than that. Today, every single medical expert who has examined Hill believes that his condition is consistent with "mental retardation" (state medical experts, who at first concluded that Hill was not intellectually disabled, with an IQ of 77, last year disavowed those conclusions). Despite this unanimity of medical opinion, however, Georgia still contends that Hill has not and cannot prove his "retardation" beyond a reasonable doubt and thus has pressed ahead with its execution plans. In the case of a convicted murderer, and an outlier law that contradicts the spirit of Atkins, from Georgia there's been no admission of any mistakes or pledge to "do it better the next time."

A Sea Change Over Lethal Injection

While Georgia and Hill's lawyers were litigating all that, a new front in the endless war over the death penalty opened up—a fight over transparency in the lethal-injection process. Sodium thiopental, a drug that states like Georgia had used effectively for years to execute prisoners, is no longer available in the United States. So officials have been forced to scramble to obtain other lethal drugs, or drug cocktails, to use against the condemned—relying on companies and pharmacists that are not used to the public glare that capital punishment always brings.

States have been forced to rely upon "compounding pharmacies," which have traditionally not been subject to the same regulatory or public oversight as other drug manufacturers, to obtain the drugs they seek. Naturally, lawyers for death-row inmates have sought basic information to measure the efficacy of the drugs that are to be used against their clients: where the drugs were produced, by whom, what's in them—questions you don't have to be a lawyer to identify as relevant to the question of when an execution is lawful or not.

But state officials all over the nation have sought to protect this information from public disclosure. The idea, they say, is that the manufacturers of this controversial product must be protected from the anti-death-penalty lobby, which has in some instances put significant public pressure on entities (or individuals) producing these drugs. Protecting the means of production, state officials say, is a legitimate government interest that trumps the interests any convicted murderer might have to more information about the drugs used to kill him. 

Presented by

Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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