TheAtlantic

The sharpest battles over capital punishment today are being fought over the identity of the drugs officials seek to use in lethal injections, how those drugs are manufactured and obtained by executioners, and the obligations state officials have to share material information about the drugs with death-row inmates and the rest of the world. Late Friday, in a case out of Missouri, the Eighth U.S Circuit Court of Appeals rendered the most significant ruling yet to come out of these battles. The result is catastrophic for those who believe the means of capital punishment should generally be as transparent as its ends.

The Missouri case, and many others like it, all stem from the same development in 2011. Early that year, the manufacturers of sodium thiopental, the key ingredient in the lethal "cocktail" states were using, announced they would stop making the drug due to objections about its use for capital punishment.  That prompted state officials to scramble for other drugs and to obtain those drugs in circumstances that raise substantial doubts about the efficacy of the drugs to be used. And that in turn prompted defense attorneys to press for information about exactly what chemicals state officials plan to use to kill their clients.

And that, in turn, has caused state officials to begin to hide, in a way they never have before, the manner in which they are obtaining lethal injection drugs, the identities of the "compounding pharmacies" that are supplying the drugs, and even precisely what is in the drugs officials want to use. Last year in Georgia, for example, state lawmakers, at the request of corrections officials, passed a law that keeps this information secret even from the state's own judiciary. In Texas, meanwhile, state officials announced a few months ago that they would not return to a compounding pharmacy the lethal drugs it had obtained there.

 The issue is not just a semantic one. No execution can be entirely painless, but the Eighth Amendment prohibits "cruel and unusual" punishment, and there now are questions about whether these new injection cocktails cause impermissible suffering on the part of the condemned. In Ohio earlier this month, for example, one of these new cocktails was used on a man named Dennis McGuire, who, according to a journalist who witnessed the execution, "struggled, made guttural noises, gasped for air and choked for about 10 minutes before succumbing to a new, two-drug execution method."

Missouri Breaks

When domestic stores of sodium thiopental started dissipating, the first move Missouri made was to declare that propofol—the same drug that killed Michael Jackson—would be used to execute inmates there. But objections to the use of that drug in executions were even more pronounced than the objections had been to the use of sodium thiopental. The European Union threatened to "forbid or restrict the exportation" of the propofol to the United States (where it is used as an anesthetic in common operations). Last October, Missouri backed down—and backed away from its plans to use propofol.

Plan B, Missouri decided, was to use "an injection of five to 10 grams of pentobarbital" for its executions and to rely upon a compounding pharmacy to provide the drug. Compounding pharmacies are perhaps best known through the years for their ability to skirt federal and state regulations, so much so that President Obama last year signed into federal law a measure designed to properly regulate them. Not only did Missouri plan to use an untested drug on its death-row inmates, then, but to use one manufactured in circumstances that precluded anyone other than state officials to evaluate the drug's quality.