By Kathy Griesmyer, Policy Director, ACLU of Idaho
The public currently has access to only the bare facts about how Idaho conducts executions. This year, the state has ramped up its efforts to ensure the public continues to know little to nothing about the lethal chemicals it uses to kill people on its death row.
The latest iteration of this state-sponsored secrecy can be found in an Idaho Department of Corrections administrative rule (page 16) that would keep Idaho’s execution protocols shrouded in mystery. The newly proposed rule also puts the lie to the state’s claim that it values transparent government and an informed citizenry.
In the last 50 years, Idaho has executed just three people. The state executed Keith Wells in 1994, Paul Ezra Rhodes in 2011, and Richard Leavitt in 2012. All three men were executed by lethal injection. We know the protocol used in the state-sanctioned killing of Wells and Rhoades called for three drugs, while the protocol for Leavitt used just one drug, pentobarbital.
Additional details about these executions, however, remain unknown to Idahoans and the public at large. And Idaho is aggressively fighting efforts to learn more.
Transparency always makes for good government, but when it comes to executions, that transparency is imperative. The public has an enormous interest in Idaho’s execution procedures, including facts about who makes and sells the drugs, their qualities (for example, potency, sterility, stability, expiry, storage, and chain of possession) and how much the Idaho Department of Correction pays for them. This information enables the public to determine whether the state has acted properly, and whether executions are being carried out in compliance with relevant laws and state and federal constitutions.
IDOC began restricting public access to execution information in 2011, when the state was preparing for Rhodes’ execution. In its pursuit of the lethal drug, it seems that IDOC went outside the standard chain of commerce. That year, the only pharmaceutical company that manufactured FDA-approved pentobarbital decided not to sell it for use in executions. Yet, somehow, the state managed to procure it.
Idaho never disclosed information about the provenance or qualities of the pentobarbital it obtained to execute Rhodes and Leavitt. To this day, we do not know where IDOC ultimately got the drug. But we do know through public records requests that IDOC exchanged emails with a distributor in India who had arranged large sales of drugs to other departments of corrections. Shipments of drugs from that distributor were later seized at the border by the FDA, because the drugs could not legally enter the country.
Other states have had their execution drugs confiscated by the DEA and FDA, been caught obtaining lethal injection drugs from compounding pharmacies designated as “high risk” or on probation by licensing authorities, and obtaining execution drugs through “subterfuge.”
In 2017, Aliza Cover, an Idaho law professor, filed a request under the state’s Public Records Act, seeking information about IDOC’s executions. One area of records she sought was the identity of IDOC’s lethal injection drug suppliers and information about the drugs used in the 2011 and 2012 executions. IDOC denied that part of Cover’s request. Professor Cover, who is represented by the ACLU of Idaho, sued IDOC to compel disclosure of the public records.
To justify its refusal to disclose information regarding its execution drugs, IDOC argues Idahoans might not like what they learn. In a sworn statement, Jeff Zmuda, then IDOC’s deputy director, said that disclosing the information could lead to “harassment and pressure” of the drug suppliers, and, in turn, “lethal injection chemicals becoming unavailable.” IDOC’s position, in other words, is that if Idahoans knew how executions were carried out, they might exercise their First Amendment freedoms to express opposition to it.
Doubling down on its secrecy, IDOC has added a new rule to their larger administrative rules docket that will prevent the public from ever finding out where IDOC obtains lethal injection drugs, regardless whether the supplier is safe or legitimate. This rule was never transparently discussed at any recent Board of Corrections meeting.
Beyond the ethical problems with hiding its protocols from the public, IDOC is also wrong to claim that it is transparency that leads to the unavailability of these drugs. Execution drugs have become more difficult to procure because court decisions, FDA and DEA actions, and pharmaceutical companies have made some drugs less available.
Allowing the state to further withhold information will enable IDOC to perform executions with no public oversight. It would also allow the state to hide malfeasance, including by operating outside state and federal drug laws and using questionable drugs that could lead to a botched execution, which amounts to torture.
The public’s interest in knowing public information about Idaho’s execution process clearly outweighs IDOC’s interest in secrecy. We call on lawmakers and Idaho state leaders to reject this flawed proposal and instead ensure that transparency remains a pillar of Idaho government.