Constitutional Law

ABA urges top state court to consider death penalty policy, constitutional challenges in drug records case

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The ABA filed an amicus brief with the Idaho Supreme Court on Friday that urges justices to consider the association’s position on issues related to public records about the lethal injection drugs used in death penalty cases.

In the brief, the ABA also asks the state’s highest court to consider constitutional issues that arise from the Idaho Department of Correction’s move to keep records regarding drugs used in executions secret.

The ABA’s press release is here.

“There is no compelling need for secrecy around execution protocols,” the ABA said. “No statute explicitly requires secrecy, and the department has no legitimate interest in carrying out unexamined, and potentially unconstitutional, executions.”

In 2018, University of Idaho College of Law professor Aliza Cover filed a lawsuit against the Idaho Board of Correction, Idaho Department of Correction and its public information officer Jeffrey Ray, seeking the state’s source of execution drugs, its drug manufacturer and distributor, and lot numbers and expiration dates of the drugs, among other information, as part of her research on the death penalty.

The Department of Correction initially refused her request, arguing that the source of the drugs should remain secret. After the 2019 trial, a state court required disclosure of the drugs used in previous executions but permitted the department to withhold records related to drugs that would be used in future executions.

The ABA contends in the brief that while it takes no position on whether a state should have the death penalty, “it has long sought to ensure that if it does, it administers the death penalty fairly and accurately, with appropriate substantive and procedural protections.”

Its initiatives include the ABA Death Penalty Due Process Review Project, which conducts research and educates the public on death penalty laws in different jurisdictions, and the Death Penalty Representation Project, which provides training and technical assistance to legal professionals to improve representation of those facing the death penalty.

The ABA House of Delegates also approved a resolution in 2015 that urged legislative bodies and governmental agencies, including departments of correction, to “promulgate execution protocols in an open and transparent manner” and “require disclosure to the public, to condemned prisoners facing execution, and to courts all relevant information regarding execution procedures.”

The resolution asked that this information include “details about any drugs to be used, including the names, manufacturers or suppliers, doses, expiration date(s), and testing results concerning use of the drugs.”

In its brief, the ABA argues that in “weighing the public interest in ensuring lawful executions against the Department’s interests in confidentiality and security, the public interest prevails.” The association also said that no pharmaceutical manufacturer endorses the use of its products for lethal injections, but that “fear of criticism of the department or its actions is insufficient justification to undermine the First Amendment policy favoring transparency by hiding essential information about executions from the public.”

In addition to First Amendment challenges, the ABA contends that withholding information about execution protocols and details about the drugs used prevents those facing the death penalty from defending their Eighth Amendment rights.

“Without information about execution protocols and drugs, courts cannot assess whether an execution will violate an individual’s Eighth Amendment right to be free of cruel and unusual punishment,” the ABA said in the brief. “This effectively strips death row inmates of their Eighth Amendment protections, and due process.”

The case is Cover v. Idaho Board of Correction.

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