CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, September 19, 2014

Fan on Executioner Confidentiality and Legal Injection Drug Suppliers

Fan maryMary D. Fan (University of Washington - School of Law) has posted Extending Executioner Confidentiality to Lethal Injection Drug Suppliers (95 Boston University Law Review (2015), Forthcoming) on SSRN. Here is the abstract:

The strategy of taking the death penalty battle to the market by ferreting out and campaigning against lethal injection drug suppliers has been wildly successful in shriveling the execution drug supply. The supply-side strategy has not halted executions, however. Rather, the unintended consequences of shrinking execution drug supply are heightened risks of harm as states resort to alternative drugs and a surge of new state secrecy laws to protect remaining supply sources. The new secrecy laws are facing a barrage of legal challenges and a circuit split on how to resolve them. Yet despite the voluminous literature on the rights and wrongs of the death penalty, there is little study of the legal question now besetting the courts regarding execution drug supplier confidentiality. This article fills the need for a study of rise and propriety of the new lethal injection supplier confidentiality laws and the role of such laws in preventing worsening harms and unintended consequences.

The article distinguishes the frequently litigated issue of execution drug supplier confidentiality from concealment of the method of execution. There is a harm prevention rationale for supplier confidentiality, to safeguard remaining licensed drug sources and reduce the need to resort to questionable backroom sources abroad or old methods of execution such as firing squads. In contrast, eleventh-hour drug substitutions lack a harm prevention justification and are far more material contributors to the rising risk of harm. The recent rise of drug supplier confidentiality laws make them a lightning rod for challenges – and unfortunately draws attention away from the real problem: secret execution protocols rather than secret suppliers.

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