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600 Gasps: Why the Alabama Legislature Should Lift the Hangman’s Hood (Opinion)

By Lee Hedgepeth
Alabama Political Reporter

Last week, the State of Arizona executed Joseph Wood in a process that lasted two hours and included the use of never-before tested lethal injection drugs. Wood was legally barred by the state from knowing who was injecting the drugs in his veins, or even the country or state in which the drugs were made. During the two hour execution, Wood gasped for air over 600 times, his stomach convulsed repeatedly, and toward the end, at a point when officials said he was merely “brain dead,” he began “involuntary snoring.”

Woods had earlier been granted a stay of execution by the US Ninth Circuit Court of Appeals on the grounds that those involved in the execution process – the executioners and the pharmacists who supply the drugs – must be revealed by the state. The Supreme Court, though, without any comment, lifted the stay of execution, at which point the state of Arizona moved forward with the process.

According to media reports from on the ground in Arizona, Justice Anthony Kennedy even got a second chance to stay the execution; having been unable to reach any other judges on short notice, Wood’s defense lawyer reached Kennedy while Wood was convulsing and gasping for air and he declined to intervene. Eventually, the relevant federal judge in Arizona was reached to rule on the matter, but Wood was declared dead during his deliberation.

Just as in Arizona and most other states, lethal injection is the primary method of execution here in Alabama. But, states throughout the nation, including ours, have had difficulty obtaining lethal injection drugs due to public outrage at pharmacies which provide their medications for use in state-sponsored killings. This type of pressure had been growing since 2009, when the maker of thiopental, the preferred execution drug, stopped production. Then in 2011, with the new hangman in town producing a second-choice execution drug called pentobarbital, they decided to bar all US prison sales.

Because of this, many states have seen death penalty secrecy laws sweep through their state legislatures in an attempt to stymie the flight of pharmacies from their roles in the “machinery of death.”

While some have been upheld as constitutional – like Georgia’s – others have been widely criticized by judges like Judge Bye of the US Court of Appeals for the Eighth Circuit, referring to Missouri’s policy of hiding death penalty information:

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“Missouri has again, at the eleventh hour, amended its procedure and again is using a shadow pharmacy hidden behind the hangman’s hood and copycat pharmaceuticals to execute another death row inmate,” Judge Nye wrote. (internal quotations omitted)

Another factor that should inform our discussion is that compliance with the US Constitution on the part of states is in their own interest if the death penalty is to survive as a public policy, a goal to which states like ours have long ascribed. California recently confirmed this notion when their dubious death penalty procedures caused a federal judge to rule the entire practice unconstitutional Statewide. As Judge Nye put it in Missouri’s case: “Indeed, it is surprising Missouri has not been more transparent during this process, as it, too, has a strong interest in ensuring its executions conform with constitutional requirements. Thus, since Taylor [the death row inmate] asks for nothing more than information about the chemicals set to be injected into his own boy, no undue burden has been placed on Missouri.”

Keeping the death penalty, if we are to have it, a transparent public process does not seem to be the goal of many Montgomery legislators, though. During this year’s regular legislative session, some GOP lawmakers pushed until Sine Die for a death penalty secrecy statute, using fear and rhetoric as a means of persuasion instead of logic and reason. Republican leaders like Lynn Greer in the House and Cam Ward in the Senate falsely claimed that Alabama would revert to the electric chair if the legislation was not passed, a legal claim promptly and astutely debunked by Tim Lockette of the Anniston Star.

During the debate in the House of Representatives on the bill, lawmakers suggested the secrecy provisions were immediately necessary because of harassment and intimidation of those involved in the execution process and an inability to obtain drugs from pharmacies or manufacturers who were disclosed. In reality, however, the identities of all these parties are are already being shielded by the state. Multiple media organizations, including the Alabama Political Reporter, the Associated Press, and the Anniston Star have requested records including the information – to no avail. Members of the House even claimed that the press had been consulted and approved of the legislation, a claim substantiated by no member of the Capitol press corps APR consulted.

These dubious debacles barely slowed the bill’s momentum though. The legislation passed the House of Representatives 77-19 and was at the call of the Lieutenant Governor in the upper chamber during the majority of the session’s final hours, nearly gaining a trip to the Governor’s desk.

Despite its failure this session, execution secrecy legislation is not dead in the Yellowhammer State. The 2015 regular legislative session is just around the electoral corner, a timing situation that will give politicians the ability to feel little to no compunction for votes like this without significant public pressure.

And in any case, the status quo is a win for cruel and unusual punishment, with the state preventing its citizens and those it will execute from knowing crucial details about the fundamental aspects of a death row inmate’s last moments – the identity of the drugs flowing into their veins and of the person holding the syringe. Even this situation, much less a worse one, can be prevented through state legislation requiring such disclosures to the public.

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In most of the United States, including here in Alabama, the death penalty is considered a rational deterrent to the most violent of crimes. That belief should drive those who espouse it to fix the death penalty system, to increase transparency and decrease arbitrariness, not to allow others to hide behind a statutory death mask and endanger the policy choice many believe every state has the right to make.

Further, in Alabama, whether the rest of the nation believes it or not, we believe in the Constitution – including the Eighth Amendment’s prohibition on cruel and unusual punishment. We believe in the effectiveness of the death penalty, but we also believe in fighting an opaque bureaucracy.

We dare defend our rights – even those of the most violent and incarcerated – in order to protect the rights of us all.

So tell the Alabama Legislature today: Lift the Hangman’s Hood.

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