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.
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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. 

Georgia's State-Secrets Law

This is why Georgia lawmakers last summer passed a measure at the request of the state's Department of Corrections keeping this information secret even from the state's own judgesBefore the law was blocked by a trial judge last summer, it made such information a "confidential state secret" and created a catch-22 for any death-row inmate seeking to challenge Georgia's lethal injection protocols: You need the information to make your Eighth Amendment challenge, but you can't make your Eighth Amendment challenge without the information.

Defense lawyers challenged the law last July. Not only did it violate Hill's Eighth Amendment rights, they argued, it also violated his First Amendment rights, by depriving him of the opportunity to review information critical to the formulation of a constitutional claim. Georgia countered by defending the new statute; the state has a tradition of keeping confidential information about executions (like the names of its executioners), state lawyers argued, and the new secrecy law was just a new form of that confidentiality.

The trial judge sided with Hill. The information defense attorneys had sought, and that was now blocked by statute from disclosure, was "essential to the determination of the efficacy and potency of lethal injection drugs," Fulton County Superior Court Judge Gail S. Tusan wrote. Rather than amend the law or provide Hill's lawyers with the information they seek, Georgia appealed Tusan's ruling to the state supreme court. It is time, state lawyers say, for Georgia to proceed once again with Hill's execution—and critical information about the drugs to be used remains none of the judiciary's business.

The Oral Argument

Here is the link to the video of Monday's oral argument in Owens v. Hill. It's about 40 minutes long but a few things pop off the screen. First, Georgia makes the same "parade of horribles" argument that government attorneys always make when they are being asked to provide more transparency about something they wish to keep secret. If Georgia provides Hill's attorneys with some basic information about lethal-injection drugs it will have to provide such information to lawyers for all condemned men. This is a bad thing, state attorney Sabrina Graham suggested: "Where does it end?" she asked, without conceding that this conflict is over where the search for such information begins.

Second, Georgia says that Hill has no constitutional claim to the information because even if he received it he could not support a claim under the Eighth Amendment. We are going to give him so much of this lethal drug, Graham told the justices, that there is no chance he'll have a "cruel and unusual" death from any tainted drug. This sounds like a crazy argument but it's highly relevant. In 2008, in a Kentucky case styled Baze v. Rees, the Roberts Court formulated a strict standard for inmates to meet to prove an Eighth Amendment claim: Lethal injections are broadly presumed to be neither "cruel" nor "unusual."

Third, there was an element of gall to the argument. In order to establish a viable claim here, Georgia's lawyer told the justices, Hill's attorneys would have to establish a "scientific consensus" that Georgia's use of a particular lethal drug (compounded or not) created a significant risk that the condemned would be subject to "cruel" treatment. But of the current scientific consensus that now exists over Hill's mental status, neither Georgia nor the justices said a word. Scientific consensus is legally relevant when it blocks transparency in the death penalty; when it can block an execution under Atkins, it's not dispositive.

It is important to remember here that this is a court that just last February insulated state officials from certain challenges to new lethal-injection rules after acknowledging that "the particular issue of lethal injection procedures is heavily litigated and closely scrutinized by state and federal courts throughout the nation, including this Court." Nahmias, so clearly eager Monday to defend the Georgia law that eschews transparency, signed off on that 2013 ruling promising "close scrutiny" from the courts. Not exactly a good example of the "do better the next time" lesson he imparted upon those young lawyers, is it?

Postscript

Georgia is not the only state to try to hide information about its new lethal-injection drug—essentially the same thing is happening in Texas, Missouri, and Oklahoma. What makes this case so important is that the transparency issues at the heart of the conflict have advanced further in court in Georgia than they have anywhere else. Even though a state-court ruling in Georgia is not binding on another state, you can be sure that state lawyers in every death-penalty state are hanging on every word the Georgia justices say. This is an area of capital law that is in a great state of flux. This ruling will add some clarity, if not some certainty, to the national debate.

And there is no way to tell how these justices are going to rule. Clearly some justices are concerned about the way the Georgia law intentionally freezes out even the state's own judges from evaluating key injection information. Clearly they have read news accounts of recent executions performed in these dubious circumstances. But several of the justices also were clearly concerned about opening up the lethal-injection process to more public scrutiny and delay—and about the backlog of death-row inmates the state wants to clear out. It will be about four months before we find out what's what.

In the meantime, if the Georgia justices really wanted to give those eager young lawyers a lesson they wouldn't soon forget, they could have asked them to stay to hear this important argument and then invited them to ask questions. One baby lawyer might have asked this: Does the Constitution permit the executive branch to block the judiciary from evaluating the actions of state officials in capital cases? Another baby lawyer might have asked, should the rights of the condemned to know what is being used to kill them trump the fears of compounding pharmacies at being held publicly accountable for their roles in executions? No one in a robe asked either of those questions Monday.

Georgia lawmakers made a terrible mistake last summer when they passed this unconstitutional law. And the Georgia Supreme Court would be compounding that mistake if it permits state officials handling lethal injections to skulk around in the dark as they obtain and prepare drugs for use against death-row inmates. Whatever is left of the legitimacy of capital punishment in America is based upon the transparency of the process—the laborious ways in which the courts chronicle the justifications for imposing society's ultimate sanction. This will not happen in Georgia if this law stands. The state can do better. And so can its courts. It's time to practice what Justice Nahmias preached.

 

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* I am aware the phrase "mental retardation" is outdated and considered offensive by many, including many in the medical and psychological communities. However, the U.S. Supreme Court still uses it in death-penalty jurisprudence and so I include it here on first reference to stay consistent with the applicable legal standard.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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