Lawsuit from media outlets seen as critical test of creeping secrecy introduced in response to an international boycott of sales of lethal medicines to US states

A judge in Missouri struck a blow for public transparency in the practice of the death penalty by ruling that the state’s department of corrections had no right to withhold information from the media about the source of its lethal injection drugs.



Judge Jon Beetem, sitting in the Missouri circuit court of Cole County, ruled the state had “knowingly failed, at least in part” to comply with its obligation to act with transparency. He ordered the state to release key details about its supply of deadly chemicals, pending a further hearing on what information should be redacted.

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The case was brought in May 2014 by the Guardian and media partners after they were denied information by the state of Missouri under its freedom of information laws, known locally as the Sunshine Law.

The Guardian, together with the Associated Press and three prominent local news outlets – the Kansas City Star, the St Louis Post-Dispatch and the Springfield News-Leader – had asked for details of the supply route of the drugs used by the state to kill prisoners as well as any quality controls applied to the chemicals.

But the news outlets were turned down by the department of corrections on grounds of “institutional security”.

The lawsuit was seen as a critical test of the creeping secrecy introduced by Missouri and several other death penalty states in response to an international boycott of sales of lethal medicines to US corrections departments. As supplies of the drugs ran short, states turned to increasingly shady and unregulated sources.

Fearing that public disclosure would frighten away pharmacies from making up, or compounding, lethal drugs to order, many states introduced secrecy rules. In Missouri’s case, the department of corrections unilaterally revised its execution protocol in October 2013, to widen the net of secrecy.

Until then, the state had defined the execution team that was protected with anonymity as consisting of “contracted medical personnel and department employees” who were present in person in the death chamber. Under the new rules, the definition was expanded to include pharmacists and “individuals who prescribe, compound, prepare, or otherwise supply the chemicals for use in the lethal injection procedure”.

Judge Beetem was scathing about the prison authorities’ attempts to keep from the public key details of its execution procedures by tampering with the protocol. He said the department of corrections had acted “contrary to law” by widening the definition of the execution team to include drug suppliers in a way that went beyond the authority given to it by Missouri lawmakers.

“The person or persons who prescribe, compound, or otherwise supply chemicals for use in lethal injection executions are not present in person at executions … the [expanded] protocol including the suppliers of the lethal injection drugs as members of the execution team is contrary to law,” the judgement states.

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Information about the identity of pharmacies and other drug suppliers is seen by the Guardian and other news outlets as being in the public interest in part because of a spate of recent botched executions in which prisoners have endured prolonged and potentially agonizing deaths.

Without knowing the provenance of the lethal injection chemicals, and what quality controls if any were applied to them before use, it is not possible to monitor whether prisoners are being subjected to cruel and unusual punishment in violation of the eighth amendment of the US constitution.

“The execution of condemned prisoners is the ultimate act of the state and I can think of nothing more important for the public to know than how the state is carrying that out,” said Bernard Rhodes of Lathrop & Gage, the attorney for the media group.

The Cole County ruling mirrored two other judgments issued concurrently by the same judge relating to similar challenges to Missouri’s death penalty secrecy that had been brought by the American Civil Liberties Union of Missouri and the Reporters Committee for Freedom of the Press.