Executions, Secrecy and the Public Right to Know

Sakineh Ashtiani is at risk of execution in Iran. Last month, her lawyer and her son were arrested, apparently for discussing her case with foreign nationals.  Her other lawyer, prominent human rights and death penalty defense lawyer Mohammad Mostafaei, was hounded into exile over the summer when he refused to be silenced.

Alan Shadrake is due to be sentenced next Tuesday 9 November © Alan Shadrake

In Singapore, Alan Shadrake is now a convicted criminal because he wrote a book about capital punishment in that country.  He could be sent to prison next week.

While these episodes may be extreme, the same efforts to suppress information about the death penalty are at work here in the USA where, for instance, a state law in Missouri makes it a crime – even for journalists – to reveal the identities of those who participate in executions.

It’s the same principle of secrecy that allows Arizona and California to continue to conceal the source of their execution drugs, or for the Texas Department of Criminal Justice to call for such information to be classified as a “state secret.”  The claim that such secrecy is necessary to protect executioners from harassment is incredibly weak.  Other government agencies and employees (for example, the guy at the DMV who makes you wait in line, or the city employee who gives you parking tickets) don’t benefit from such undemocratic anonymity.  The public has a fundamental right to know what a state agency is doing with their tax dollars, especially when that agency is engaged in the ultimate act of state power – the killing of a human being.

Most of us would agree (I hope) that lawyers should not be detained for publicizing their client’s case, and that no one should be punished for writing about a country’s death penalty (although that could happen under Missouri’s law).  When government is exercising its greatest power, that’s when we should demand the greatest transparency.  This is essential to ensuring accountability and preventing that power from being abused.

Instead, we are seeing, both globally and here in the USA, a disturbing trend towards imposing greater secrecy on the executions that are carried out in our name.

9 Out of 10 Counties, Zero Death Sentences Since 2004

What makes a punishment “unusual?” The 8th Amendment to the Constitution bans “cruel and unusual” punishments, and the Supreme Court in recent years has suggested that a punishment becomes unusual when few states have it in their laws, or, if laws are still on the books, when few jurisdictions choose to actually use the punishment

So what do we make of the fact that since 2004, only 10% of US counties have actually passed a death sentence?  That’s the bottom line of a new set of maps (presented on the Second Class Justice blog) which illustrate US death sentences by county from the years 2004-2009.  Counties are where US death sentencing happens (aside from federal death sentences).  If 9 out of 10 counties have not issued a death sentence in 5 years, does that make the death penalty unusual?

One of the reasons the high Court struck down capital punishment as “cruel and unusual” back in 1972 was its inconsistent and arbitrary application.  “…[C]ruel and unusual in the same way that being struck by lightning is cruel and unusual,” the Court said.  In reinstating the death penalty, the Court insisted that death sentences be limited to the “worst of the worst.”  But that hasn’t happened.  Instead, death sentences, like real estate, are all about location, location, location.

And the maps reveal that the prime real estate for death sentences is no longer in Texas or other parts of the Old South.  In recent years, the most enthusiastic death sentencing counties have been further west, in California and Arizona.  (These same states, incidentally, are currently embroiled in a controversy over whether or not they acquired execution drugs illegally.)

Are States Breaking the Law to Get Execution Drugs?

As discussed previously here, the lethal injection drug sodium thiopental has been in short supply, and states have been running out.  Its manufacturer, Hospira, won’t be able to make more until at least early next year. Yet some states have mysteriously been able to get new supplies.  Oklahoma carried out an execution last night with drugs they may have obtained illegally from Arkansas.  The sudden appearance of a new batch of sodium thiopental in California has raised questions about whether they may have acquired it from overseas, and, like California, Arizona is refusing to reveal where it got its recent supply of the drug.

All this so states can continue to kill prisoners.

Hospira’s plea for states to stop using their product in executions may have fallen on deaf ears, but there could legal ramifications if states are acquiring FDA regulated drugs illegally.  According to the Daily Beast, citing the Oklahoma Department of Corrections, “Oklahoma did not consult a DEA registrant in obtaining the drug from Arkansas and filed no paperwork recording the transaction,” as is required by Federal law.

California’s new batch of sodium thiopental expires in 2014.  Hospira’s spokesman Dainel Rosenberg to the Arizona Republic, “The expiration dates for lots last manufactured by Hospira are for 2011. Therefore, product with an expiration date of 2014 cannot be Hospira product.”  Since Hospira is the only FDA approved manufacturer of this drug, what is it that California has?

Arizona is scheduled to execute Jeffrey Landrigan on October 26, but is also concealing where or how it acquired the sodium thiopental it plans to us, telling the Arizona paper only “The Department has lawfully obtained the necessary chemicals under its current written protocol ( . . . ) in sufficient quantity for an execution.”

We have a right to know how our states are carrying out this most extreme act of punishment.  Treating the acquisition of lethal injection drugs as if it were some big national security secret is not only suspicious.  It is an insult to the public in whose name these states are zealously trying to kill people.

California Spent 4 Million Dollars Trying to Kill Prisoner

One would assume that a state facing a significant financial crisis would choose to spend its resources on practical policies and beneficial projects. Why, then, did California waste $4 million in order to accomplish… nothing? Perhaps that’s unfair; the state did have a goal in mind while spending this money – executing Albert Brown.  Not an admirable goal, and, thankfully, Albert Brown is still alive and in prison.

Why not save the time, funds, and pain associated with the death penalty? As James Clark of Southern California’s ACLU suggests, replacing  the death penalty with life without parole, and requiring people in prison to work and provide restitution to victims’ families, would be a much better use of the state’s time and resources. In California, the current system costs $137 million per year; it would cost $11.5 million for a system without the death penalty. Why is the state so hell-bent on sentencing offenders in the most fiscally irresponsible way possible?

It has been nearly five years since California has put anyone to death, and thanks to a lethal injection drug’s expiration date, it would be at least next year before executions could conceivably resume. Maybe in the upcoming months California officials can be persuaded to make better use of taxpayers’ money, and will stop wasting it on these pointless efforts to kill prisoners.

California Execution Blocked by Two Courts

California may be keeping its moratorium in place… for now. U.S. District Judge Jeremy Fogel has blocked the Thursday night execution of Albert Brown.  In a separate ruling, the California Supreme Court also blocked Brown’s execution.

Judge Fogel’s decision was a reversal of the one he made last Friday, in which he said Brown’s execution could go forward after Brown himself chose between a single-injection method or a three-drug cocktail. Questions arose, however, when it was discovered that the state’s supply of sodium thiopental, an anesthetic used in executions, is good only until Friday, mere hours after Brown’s scheduled execution. Not only that, but the state only has 7 grams  of the substance on hand.

Earlier, a federal appellate panel had raised concerns about this revelation of the drug’s impending expiration, and wrote: “It is incredible to think that the deliberative process might be driven by the expiration date of the execution drug.”

Judge Fogel noted that the drug’s imminent expiration was a “fact that the defendants did not disclose to this court.” He also said there was “‘no way’ the court could conduct a proper review” before Brown was scheduled to die.

California Rushing to Kill Before Drug Expires

Now we know why California is in a rush to execute Albert Brown.  His lethal injection, now scheduled for 9 pm on Thursday, September 30, will take place just three hours before California’s supply of one of the drugs  expires.  The drug in question, of course, is sodium thiopental, the same drug that its manufacturer, Hospira, has called on states to stop using for executions.   Sodium thiopental, an anesthetic that has very important medical uses, is currently in short supply; using it to kill rather than to heal should be unacceptable to all, regardless of their position on the death penalty.

Given this mess, the 9th Circuit federal appeals court has asked the judge who earlier denied a stay of execution to reconsider his decision.

Why is California Rushing to Kill Albert Brown?

California has not put anyone to death in nearly 5 years.  Litigation around the state’s lethal injection procedures has led to a de facto moratorium on executions.  But that moratorium may come to a sudden end this Wednesday, when Albert Greenwood Brown is scheduled to be killed shortly after midnight.

The legal issues surrounding California’s method of killing its prisoners have not been fully resolved, yet the state is asserting that executions should be restarted anyway.  But what for?

California has by far the nation’s largest death row, with over 700 inmates, and soaks its taxpayers for upwards of $100 million per year for the privilege of having a death penalty.  Over $800,000 was spent on a new lethal injection chamber which contains two things – a gurney and a clock.  And hundreds of millions more are going to build a new death row. Capital punishment in California (and elsewhere) is a money pit.  Millions of dollars get tossed in, but nothing good ever comes out.

California taxpayers are beginning to see the death penalty for what it is – a colossal waste of resources.  For a state that doesn’t even have a budget and is currently furloughing workers, devoting such time and energy (and money) to killing a few prisoners who are already locked up for life is not just pointless and cruel.  It also diverts scarce resources that could be directed towards proven crime prevention measures and real support for victims’ families.

At the heart of the controversy that has halted executions in California is the question of how a state can kill its prisoners in a sufficiently humane way.  Of course, there is no answer to that question, because killing prisoners is inherently inhumane.  The sooner the state of California recognizes this fact and does away with its death penalty, the sooner they will be able to focus on policies that actually do some good.

A 64 Million Dollar Question

Killing prisoners is an abuse of state power.  Even if it saved money it would still be the ultimate human rights violation.  But of course, it doesn’t save money.   The death penalty costs money.   This is especially true in California, where a study recently concluded that abolishing capital punishment would save the state over $100 million a year.  And that’s not including the hundreds of millions of dollars California needs to build a new death row.

Now comes the news that Governor Schwarzenegger intends to borrow $64 million from his state’s already depleted General Fund to keep the new death row construction going.  How else could $64 million be spent?  The ordinary Californians surveyed in this video thought first, not of yet another prison, but of education, housing for the homeless, and better transportation.

When 500 Chiefs of Police were surveyed as to “what interferes with effective law enforcement”, insufficient use of the death penalty came in dead last, with only 2% citing it as a problem.  At the top of the list for these Police Chiefs were “lack of law enforcement resources” (naturally), but also of most concern were drug/alcohol abuse, family problems/child abuse, and lack of programs for the mentally ill. 

$64 million could go a long way towards addressing these real concerns. So how does it makes sense to divert scarce resources that could improve the lives (and safety) of Californians, just to maintain an ineffective policy that violates basic human rights?

Prop 8 Out, Equality In

The verdict is in.  A federal judge in San Francisco today struck down a voter-approved ban on gay marriage in California.

At Amnesty, we welcome the decision as Proposition 8 challenged our basic human right to be treated equally under the law.  In response to the ruling, Amnesty International USA Executive Director Larry Cox issued the following statement:

“The U.S. District Court has sent a clear message on Proposition 8: discrimination by any means is unacceptable.  This affirms not only equality in civil marriage, but the basic human right to be treated equally under the law, without regard to an individual’s sexual orientation.

“Proposition 8 served only to stigmatize same-sex relationships in ways that can fuel further discrimination. Denying equal civil recognition of same-sex relationships compounds the effects of discrimination and undermines other rights, such as the right to housing or social security.  Amnesty International welcomes today’s ruling as an affirmation of equality under the law.”

A Billion Reasons to Cut Capital Punishment in California

California is broke and California’s capital punishment system is broken. To try and help out, the ACLU of Northern California has launched their “Cut This” campaign – advocating for cutting the death penalty to save the state money. How much money? Approximately $1 billion over the next five years. This money could be used for much needed social services such as healthcare, education, or for more resources for law enforcement.

It is well documented that in California, as elsewhere, it costs more to sentence someone to death than to give them life without the possibility of parole.  Information compiled by the ACLU of Northern California shows that, compared to non-death penalty trials, the cost of California capital cases is strikingly high.

According to the California Commission on the Fair Administration of Justice, Capital punishment costs California taxpayers $137 million each year, whereas permanent imprisonment for all those currently on death row would cost just $11 million, a savings of $125 million each year, or $600 million over five years.  On top of all of that, $400 million is needed to construct a new death row, because the current facility is too old and overcrowded.   So, as mentioned above, that’s $1 billion over the next five years.

There are of course many reasons to oppose the death penalty beyond its prohibitive cost … it is a fundamental violation of human rights for the state to kill a prisoner.  The state has a responsibility to protect citizens from violence and provide support for victims and survivors of violence, but the death penalty does neither, and in fact diverts resources that could be better used to prevent crime and help victims.