Legal but Unspeakable

Arkansas lawmaker wants to make it a felony to identify makers of its execution drugs

This article was published as part of the March 7 Daily Appeal. Find out about other legislative developments here.

This week, an Arkansas lawmaker proposed a law that would prohibit the state from releasing information that could identify the suppliers and makers of its execution drugs. The proposal would make disclosing the information a felony. This could give officials broad powers to keep information about executions secret from the public. Arkansas doesn’t have any executions scheduled, and the state’s supply of the three lethal injection drugs it uses has expired. Last year, Arkansas put four people to death over an eight-day period in a rush before its supply of drugs expired. Prison officials have said they won’t search for new drugs until state law is changed to keep the manufacturers of its drugs a secret.

“Drug secrecy laws have expanded as companies have objected to their products being used to put inmates to death,” writes Andrew DeMillo. “Critics of the laws say they increase the possibility that executions will be cruel and unusual since they don’t know the source of the drugs.” But there is another reason to oppose these laws: They uphold immoral practices. If the stigma of producing tools for execution is so great that no drug manufacturing company will put its name on the product, that should tell us something about executions. It should tell us that executions are beyond the pale.

When the bill’s sponsor, Republican State Senator Bart Hester said his bill would “protect those who want to help us uphold the law,” he was right—the bill would protect those who want to uphold a practice that is legal but immoral. Attorneys do not ask for their names to be kept secret when they represent people in court. In fact, we rely on open courtrooms to ensure transparency and accountability. But when it comes to the most high-stakes matters, when the state is given the power to end a person’s life, then the inner workings become secret. That is because there is a deep mismatch between the law and public opinion when it comes to the death penalty.

It is why Jerry Givens, who as Virginia’s executioner from 1982 to 1999 executed 62 people, wrote, “When I accepted the job, I never told my wife or kids or anybody [because] I didn’t want them to go through anything I had to go through. If I told someone, they would tell someone [and eventually] everyone would know exactly what I was doing.” If everyone were on board with the idea of executing people, this would not be an issue. Givens now campaigns to end capital punishment.

This mismatch is particularly ironic because the Supreme Court has explicitly held that claims of cruel and unusual punishment under the Eighth Amendment must be evaluated according to society’s “evolving standards of decency.” Another sign that the death penalty remains even though decency standards have left it behind is the practice of death qualification, which excludes jurors from service based on their opposition to the death penalty. “While the Supreme Court considers the prevalence of death verdicts as a gauge of the nation’s moral climate, it has ignored how the process of death qualification shapes those verdicts,” writes law professor Aliza Cover. “This blind spot biases the Court’s estimation of community norms and distorts its Eighth Amendment analysis.”

In a 2012 book, “Peculiar Institution: America’s Death Penalty in an Age of Abolition,” sociologist David Garland seeks to make sense of the strange way the death penalty is maintained in many American jurisdictions, which reflects “an extreme form of institutional ambivalence, expressed in a uniquely cumbersome and conflicted set of arrangements.” As law professor and death penalty expert Carol S. Steiker writes, “Garland connects the peculiarity of the American death penalty to the original American ‘peculiar institution’—slavery—and argues that there are ‘undeniable’ though difficult to specify continuities between America’s history of racial violence, especially lynching, and its contemporary capital punishment practices.”

American ambivalence about the morality of slavery has been seen in the exclusion of the word “slavery” or “slave” in the Constitution, and later seen in the Fugitive Slave Act, which forced people to act against their own moral inclinations and return slaves who had escaped. And it can be seen today, in its early stages, when giant tech firms are pressured to cut ties with ICE and other law enforcement groups. Last summer, Amazon employees sent a letter to Jeff Bezos, saying that Amazon’s work on facial recognition software with Palantir, which supports ICE, is akin to IBM’s work with the Nazis on technology that helped manage the Auschwitz and Dachau death camps. The contract, they said, makes them feel like they are working “with Hitler.”

And this week, JPMorgan Chase announced that it will stop financing private prisons and detention centers which, because of the Trump administration’s immigration policies, have been used to put terrified children in cages, according to witnesses. Wells Fargo, too, said in January that it was reducing its relationship with the prison industry as part of its “environmental and social risk management” process.

When companies need to operate in secret because their work is considered too immoral by too many people, that should tell us something about the laws that permit those practices: History won’t look kindly on them.