A Right to Know How You’ll Die: A First Amendment Challenge to State Secrecy Statutes Regarding Lethal Injection Drugs

Mennemeier, Kelly A. | January 1, 2017

In the years since 2008, when the Supreme Court upheld the constitutionality of a commonly used lethal injection protocol in Baze v. Rees, states have shifted away from the approved protocol and turned towards new drugs, drug protocols, and drug sources to carry out state-sponsored executions by lethal injection. Even as states have shifted to new, untested protocols and less-regulated sources than they used in pre-Baze years, state legislatures have enacted and amended secrecy statutes that hide information about the drug protocols and sources of lethal injection drugs from the press, the public, and condemned prisoners. Meanwhile, a number of recent executions have gone awry, with executions lasting far longer than expected or causing apparent pain in prisoners being executed.

State secrecy about execution protocols and drug sources makes it difficult for condemned prisoners to argue about the constitutionality of execution by particular drugs, and prevents the press and the public from evaluating whether lethal injection executions are ethically or constitutionally permissible depending on the drugs being used (and the drugs’ quality and quantity). This Comment argues that state secrecy statutes concerning lethal injection drugs are unconstitutional because they impose on the public’s presumptive right of access to state-held information of this sort. The Comment explores how the public’s right of access derives from the First Amendment, and argues that secrecy laws about lethal injection drug sources and protocols impermissibly burden the public’s right of access to that information.