WASHINGTON — The capital justice system is in turmoil, with drug shortages leading states to use secret and suspect chemicals to execute condemned inmates.
“We’ve never seen so many changes and so many troubles in getting these drugs,” said Deborah Denno, a law professor at Fordham and a leading authority on methods of execution. “The states are more secret than they’ve ever been. And it’s a much riskier process than it’s ever been.”
In a little-noticed dissent last month, three Supreme Court justices suggested that it was time for their court to resolve the crucial threshold question: Are death row inmates entitled to know how the government means to kill them?
That information is a “state secret,” prison officials say. But it is hard to see how death row inmates can argue that a given method of execution violates the Eighth Amendment’s prohibition of cruel and unusual punishment if they are barred from knowing what the method is.
The dissent, written by Justice Ruth Bader Ginsburg on Feb. 25, was only a sentence long. It said that she, along with Justices Sonia Sotomayor and Elena Kagan, would have granted a stay of execution to a condemned inmate in Missouri so the court could consider whether to hear his appeal “in the ordinary course.” The inmate, Michael A. Taylor, was executed hours later, just after midnight.
The dissent was, in truth, pretty cryptic. But Justice Ginsburg tipped her hand with one phrase, saying a hard look at the case was needed “for reasons well stated” by Judge Kermit E. Bye of the federal appeals court in St. Louis. Judge Bye had filed a statement when he failed to persuade his court to stop Mr. Taylor’s execution.
“Missouri has again, at the eleventh hour, amended its procedure and again is using a shadow pharmacy hidden behind the hangman’s hood,” Judge Bye wrote. He was referring to compounding pharmacies, which are lightly regulated and could be, he said, “nothing more than a high school chemistry class.”
The issue will return to the Supreme Court in coming weeks, in cases from Missouri and Louisiana.[….]