Georgia’s secrecy surrounding lethal injection could mean people may never know what was wrong with the “cloudy” drug that postponed the execution of Kelly Gissendaner. Or how close the state may have come this past week to its own botched execution.
The Georgia secrecy law, which went into effect in 2013, specifically prohibits the state from identifying the manufacturers of the lethal drugs and others involved in the execution process. But state officials say the spirit of the law also allows them to withhold any information on the drugs — quality standards for production, credentials of the people involved, how it was tested and when the state acquired it.
On Friday, though, state corrections officials raised the prospect of more transparency when they said they would issue a “release” following the analysis of the cloudy drug. At the same time, agency spokeswoman Gwendolyn Hogan declined to answer questions by The Atlanta Journal-Constitution as to when the analysis would be completed, whether it would include the cause of the cloudiness and whether that could have affected the execution.
State Sen. Vincent Fort, D-Atlanta, found the agency’s announcement wanting, asserting that the state should not practice “transparency by press release.”
“If anything needs to be transparent and open, it’s when the state is going to kill someone in the name of the citizens of Georgia,” Fort said. He believes the number of botched executions nationally has necessitated more public scrutiny. “You don’t have to be anti-death penalty to want to know it’s done right, to the extent that people don’t suffer.”
State Rep. Barry Fleming, a supporter of the law, said it is in place for good reason. Supporters say death penalty opponents have so harassed the drug firms that they will not provide these chemicals unless their identities are shielded. Several stopped selling the drugs five years ago amid growing protests.
“If we are going to have capital punishment in the state of Georgia, we need to have a way to protect that sensitive information,” said Fleming, R-Harlem.
Georgia’s trouble with its drug comes at a time when several botched executions around the country have called into question all lethal injections. Numerous executions remain on hold as the U.S. Supreme Court reviews execution protocols after problems with one in Oklahoma. That inmate convulsed and thrashed about for 43 minutes before dying.
A string of lawsuits have been filed to allow public scrutiny — in Georgia, Oklahoma, Ohio, Missouri, Tennessee, Pennsylvania and Arizona. But little information has emerged from behind that iron curtain.
“You can’t sustain secrecy in a democracy. There is a need for responsibility,” said Richard Dieter, executive director of the Death Penalty Information Center. “There’s lots of things government does not want you to know that puts them in a bad light, or puts their friends in a bad light. But we don’t allow them to keep all that secret.”
Government officials who favor the law equate secrecy with security.
State Rep. Kevin Tanner, a Dawsonville Republican who sponsored the 2013 Georgia law, said firms that supply lethal drugs feared “harassment and threats” and would only sell the state execution drugs if their identities were hidden.
Tanner noted that a human rights organization sought unsuccessfully to have the state revoke the license of a doctor who oversaw Georgia’s executions.
Troubles before the law
Before lethal injection information was blanketed in secrecy, Georgians learned of problems with drugs that now would be secret.
About five years ago, the supply of execution drugs began to dry up nationwide because of political pressure, and Georgia and other states desperately looked for other sources. In 2010, Georgia resorted to buying one drug from a company that operated in the back of a storefront driving school in London.
Consequently, federal Drug Enforcement Administration agents seized Georgia’s supply of sodium thiopental after lawyers for a condemned inmate accused the state of improperly importing the drug from England.
Georgia also has had troubled executions.
Roy Willard Blankenship thrashed and jerked during his 2011 execution. Witnesses reported Blankenship jerked his head several times, mumbled inaudibly and appeared to gasp for breath for several minutes after he was injected with pentobarbital. Some experts said that was a sign something went wrong and he was in pain. Others suggested it was nothing and that Blankenship was faking.
Michael Rushford, president of the pro-capital punishment Criminal Justice Legal Foundation, said there has been too much consternation over the problems with executions using lethal injection, much of it, he believes, inflated by death penalty opponents.
People need to remember the level of inhumanity exercised by these murderers, he said.
“I’ve seen people on a morphine drip gasp for breath before dying. To equate that with cruel and unusual punishment for a condemned murderer is ridiculous,” Rushford said. “The murderer is not being sliced up like his victim.”
These days, when the public gets a peek behind the curtain of secrecy, it can be disturbing.
Mike Oakley, the former general counsel for the Oklahoma Department of Corrections, told a court that his research on one of the drugs, midazolam, included, “WikiLeaks or whatever it was.”
U.S. Justice Sonia Sotomayor, in a dissenting opinion to a Supreme Court rejection of an appeal to halt an execution, said that Oklahoma’s expert witness cited no studies and appeared to rely “primarily on the website Drugs.com.”
Attention on Georgia
Georgia has never been far from the center of the debate over capital punishment.
It was a 1972 Georgia case before the U.S. Supreme Court that led to a de facto moratorium on capital punishment throughout the United States, which ended with another Georgia case in 1976.
Georgia has the sixth-highest total number of executions since 1977 — a total of 57 — according to the Death Penalty Information Center. Texas has the greatest number by far with 521 prisoners put to death.
Following the cloudy drug incident, Georgia postponed the two lethal injection executions that were scheduled. One other person has cleared the state Supreme Court process for execution. Georgia has 81 men and one woman on death row.
Lethal injection remains the predominant method of execution in the United States. Some states offer condemned inmates options such as the electric chair, gas chamber or firing squad. Thirty-three men and two women were put to death by lethal injection in 2014. Many of these executions were free of incident, but three that appeared to go wrong inflamed the controversy and created more wariness.
Several experts said that prior to the Georgia incident this past week, they had not heard of a state stopping an execution because of a cloudy chemical. Georgia officials themselves said they acted out of “an abundance of caution.”
David Waisel, associate professor of anaesthesia at Harvard Medical School, said a “cloudy” dosage could mean there were contaminants in it or the drug was not mixed well, but it was hard to know without information about the origin of the drug.
This January, the U.S. Supreme Court cast doubt on one of the two predominant methods in use for lethal injection, a three-drug combination that includes the sedative midazolam.
The court stayed the execution of three men in Oklahoma and agreed to hear a challenge to the use of the drug, which critics say doesn’t achieve the level of unconsciousness required to prevent the condemned from suffering when the poisons are introduced.
Virtually all other midazolam-related executions across the country have been placed on hold, including those in Florida, Alabama and Ohio, said Dieter of the Death Penalty Information Center.
Georgia actually uses the other predominant form of lethal injection, employing the barbiturate pentobarbital.
Consequently, a lot was riding on Georgia carrying out the execution of Gissendaner without incident on Monday. The last thing state officials needed was something to go wrong with the use of pentobarbital during the first execution here of a woman in 70 years.
Gissendaner, a 46-year-old mother of three, was convicted of persuading her boyfriend to kill her husband in 1997.
If a botched execution of Gissendaner had been linked to pentobarbital, it could have endangered executions elsewhere in the country, said Deborah Denno, a Fordham University law professor who has studied execution methods for two decades.
“It certainly could have thrown a wrench into the process,” Denno said. “It could have made it more difficult to go on executing people in the foreseeable future.”
Capital punishment decreasing
The courts have supported total secrecy with regard to execution drugs, said Sara Totonchi, executive director of the Southern Center for Human Rights.
Last May, the Georgia Supreme Court upheld the secrecy law 5-2, overturning a Fulton County Superior Court judge’s ruling that it was unconstitutional.
The death penalty receives so much attention — the scheduled executions, the botched procedures, the court challenges — that it’s difficult to remember that capital punishment is used far less than in the past. Eighteen states and the District of Columbia have banned the practice, and while 32 states have kept it on the books, only about a half-dozen execute criminals with any regularity.
In 2014, only seven states carried out executions, Georgia among them, which is the smallest number in 25 years, according to the Death Penalty Information Center. The number of death penalty sentences is also shrinking — last year’s total of 72 was the fewest in 40 years — pointing to even fewer executions in the future.
Georgia, for its part, had been bucking the downward trend this year. After having only one or two executions annually in recent years, the state had already put two prisoners to death this year and was on track for a total of four by the end of March.
“Georgia was poised to be a leader,” Dieter said.
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