Executions should not be state secrets

I am one of a group of doctors filing an amicus brief (PDF) before the 10th Circuit Court of Appeals to try to ensure that there is some way to evaluate the gruesome mistakes that led to the botched execution of Clayton Lockett on April 29, 2014. Lockett, 38, was convicted in 2000 for murder, rape and kidnapping and imprisoned in the Oklahoma State Penitentiary in McAlester, Oklahoma, until the date of his lethal injection.

The doctor setting the IV first missed a vein, so the lethal drugs were not injected into Lockett’s bloodstream. Perhaps this is because he was a general practitioner, a family doctor who had no particular reason to practice inserting IVs. According to reports, he tried again and nicked an artery, splattering blood all around. By his next attempt, the drugs had run out. His suggestion that the prisoner be taken to the emergency room was rejected by Oklahoma prison authorities. After some 43 minutes of suffering, Lockett died of a heart attack.

I absolutely do not mean to pass judgment on the doctor; this is the responsibility of his professional regulator, the state medical board. He would surely face difficult questions from the board for his alleged errors. However, Oklahoma has declared any analysis of this doctor’s actions off limits.

Oklahoma has asked the 10th Circuit to order that the doctor’s name be declared secret not only to the public but also to the Oklahoma Medical Board:

The state of Oklahoma has determined that the participation in executions should be confidential and that individuals participating in those events must be shielded from the harassment, threats and annoyance that are often the unfortunate consequences of aiding the state in executing its criminal sentences.

This argument reflects a hypocrisy and double standard that is rather astounding. For justice to be done, it should be open for the public to see that it is done, and that means proceeding in a transparent manner.

As it is, the doctor’s name is already all over the Internet, so this is an exercise in futility. Plus there is no evidence that people have received threats for their involvement in executions. Contrast this with the Oklahoma attorney general’s explicitly threatening the lawyer for the Lockett family with sanctions for revealing the name of the doctor — information that the lawyer obtained legitimately, seemingly from someone who may well have felt there was an obligation to reveal possible professional negligence.

More significant, perhaps, is a comparison between death penalty opponents (who peacefully assert their right to free speech and insist on enforcement of the law) with opponents of abortion. “The most common form of domestic terrorism in the U.S. is violent attacks on abortion clinics,” economist Marina Adshade wrote, citing research from the National Bureau of Economic Research. “Between 1973 and 2003, over 300 abortion providers were the target of acts of extreme violence by anti-abortion groups.” In 1993, David Gunn of Pensacola, Florida, an obstetrics and gynecology doctor who provided abortion services, was murdered during a protest. Far from being protected by secrecy laws, his face had been splashed on wanted posters distributed by Operation Rescue for the previous year.

Far from taking similar steps to protect doctors who might be threatened by “domestic terrorists,” however, Oklahoma has imposed a raft of limitations on abortion providers, including criminal laws, some of which remain on the books despite being patently unconstitutional.

In 2014, Oklahoma passed an execution secrecy law that protects the identities of participants and the suppliers of drugs used. But the state needs to understand that the U.S. Constitution is not an inconvenience that may ignored. It infringes free speech rights to prevent the public to discuss those who participate in executions. Transparency ensures that, if the state wishes to execute people in our name, it is done with some degree of dignity and human decency — if that is possible. Further, keeping the Oklahoma Medical Board from reviewing whether the doctor committed gross malpractice in the Lockett case prevents the medical profession from policing itself and from ensuring the highest standards of medical practice. The executioner secrecy law ultimately has nothing to do with protecting doctors from threats; it is all about gagging critics and hiding the shameful evidence of botched executions. 

After all, genuine transparency exposes executions for what they truly are. When Guatemala broadcast two lethal injections on television in 2000, people were so appalled by seeing doctors involved with this process that there has not been an execution since in the country. The reality is that executions in Oklahoma and elsewhere in the world are anything but transparent. The medical profession is being used to give a cloak of respectability to a wretched process. The harsh reality is this: Killing someone is not pleasant, regardless of method — lethal injection, decapitation, firing squad, hanging or gassing. Doctors and health care professionals should have no part of it.

We can only hope that the 10th Circuit issues Oklahoma a firm reminder that America is better than this. It is essential that all medical professionals, including the doctor involved in Lockett’s botched execution, be held to account for their actions.