Can the open-source movement make the death penalty more humane?

BY S.E. SMITH

On April 29, Oklahoma inmate Clayton Lockett died an excruciating death in the execution chamber. The accounts of shocked and horrified witnesses riveted the world, but the story of injustice in his case began long before the moment a medical technician failed to place and check an intravenous needle correctly, thereby ensuring that his execution would be a painful exercise and a parody of justice.

It began when U.S. states started creating barriers around the execution process. Executioners themselves have long been anonymized; this is a tradition that dates back centuries, one that plays out in the present day by having the executioner sit in a different room or be concealed behind a wall or curtain.

The medical professionals involved with executions are also shielded from the public eye. Information about the actual drugs used and the exact protocol of administration (as well as the source of those drugs) is scant, and some states actively work to restrict access.

Clayton Lockett and fellow death row inmate Charles Warner requested information about the drugs to be used in their executions in a last-minute appeal. They were concerned about the possibility that their executions might be inhumane.

Their concerns were legitimate. Recent lethal injection executions had been accompanied with problems, ones that included obvious discomfort on the part of inmates as well as suspiciously lengthy procedures indicating the drug dosages weren’t correct. In early January, Michael Lee Wilson’s last words were: “I feel my whole body burning.” Dennis McGuire gasped and jerked on the execution table for nearly half an hour during his execution.

Part of the problem lies with obtaining the drugs used for executions in the United States. Corrections departments and prisons are having trouble finding reliable sources (including information about where the drugs come from or how they’re made), with pharmaceutical companies refusing to sell to them on the basis of both ethical grounds and concerns about retaliation. European drug companies refuse to sell drugs that may be used in executions—while in the U.S., some are worried about being targeted by anti-death penalty activists.

Consequently, prisons are turning to compounding pharmacies, which don’t offer the same assurances in terms of purity and quality control. These pharmacies usually mix or alter drugs to custom specifications, like flavoring drugs to make them more palatable for children, or manufacturing medications without a specific allergen.

In this context, they formulate generic versions of the drugs used in executions—without the level of FDA scrutiny as pharmaceutical companies. Prisoners, thus, have no idea about the exact makeup of the drugs used in their executions, while there’s a lack of consensus on execution protocol that complicates matters even further.

The Guardian, along with the AP and three Missouri newspapers, has brought suit against the Missouri Department of Corrections, demanding transparency in the execution process. Lawyers representing death row inmates are also clamoring for information, and they’re being joined by members of the public who oppose the death penalty or, at the very least, want to see it applied humanely.

The level of availability of this information varies wildly. In Arizona, for example, where executions are more transparent than in some other states, witnesses are allowed to see the entire process—but they still don’t know anything about the qualifications of the execution team or the source of the drugs used.

In the context of the swirling debate over executions in the United States, Tennessee has made an alarming and bold move: it’s bringing back the electric chair.

While eight states allow inmates to choose this method of execution (it hasn’t proved to be a popular option), Tennessee plans to enforce the use of the chair when lethal injection drugs are unavailable, forcing a new turn in the conversation about executions. The state is effectively saying that if it can’t get what it wants from uncooperative pharmaceutical firms, it will punish prisoners by inflicting an excruciating form of execution upon them.

Meanwhile, prisoners have very limited access to information about the execution process and the larger conversation about the death penalty taking place outside prison walls. While their deaths may be scheduled, the actual mechanics and machinery of their executions are a black box—a terrifying prospect on human rights grounds, but also from the perspective of a basic sense of humanity.

Prisons go to great lengths to censor reading material for prisoners, but they’re particularly attentive to any sort of literature about executions— every single piece of written material they read must be approved by authorities. In Missouri, for instance, a journalist’s haunting account of an execution from start to finish was recently banned across the correctional system because it might “instill violence or hatred” among the prisoner population.

Information, however, yearns to be free, especially in a digital era, when it’s virtually impossible to eradicate information. Publications like the “Jailhouse Lawyer’s Manual” are available for free online from multiple sources, for instance, while the Death Penalty Information Center maintains detailed records on executions in the United States.

The prisoners’ rights movement has been talking about open source, mirrored databases, and other tools for protecting information for decades, mirroring conversations had by organizations like the Electronic Frontier Foundation, or, for that matter, Google Scholar, which aims to make scholarly resources available to searchers.

The values of the open source movement are, in fact, closely reflected in the movement to push for transparency in executions in the United States: to get information out there, to make sure it stays out there for the benefit of the public, and to spark conversations with information, under the grounds that information brings freedom, and suppression of same is yet another form of tyranny. When major newspapers demand information about the practice of execution in the United States, they do so not only from the position of promoting press freedom, but also from promoting the common good and joining the open source community in making these kinds of documents available.

Thanks to the work of the open source community, corrections departments forced to turn these records over would see them turned into a crowd-sourced project, with many hands working with the data and distributing information across a variety of platforms and settings. Open source prison records would be the subject of a thousand think pieces, but they would also be the grounds for legal cases, political organizing, and so much more.

Ensuring the open access to information is critical for a free society, and digital spaces play an important role in that organizing, creating a new frontier that makes it effectively impossible to quash information once it has escaped.

S.E. Smith is a writer, agitator, and commentator based in Northern California. Ou focuses on social issues, particularly gender, prison reform, disability rights, environmental justice, queerness, class, and the intersections thereof, and has a special interest in rural subjects.

Photo via christian.senger/Flickr (CC BY-S.A. 2.0)