Authors

Mary D. Fan

Article Title

The Supply-Side Attack on Lethal Injection and the Rise of Execution Secrecy

Publication Title

Boston University Law Review

Keywords

capital punishment, executions, lethal injection, secrecy

Document Type

Article

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 the 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. This Article is about the unintended consequences of the supply-side attack strategy and how harm reduction is better served by challenging the lack of notice and adversarial testing regarding new drug protocols rather than outing and attacking the last remaining licensed suppliers. [para] While execution drug supplier confidentiality laws are often conflated with concealment of the method of execution, the Article argues it is important to distinguish the two. The success-and downsides-of the drug supplier outing strategy illustrates the legitimate harm prevention rationale behind execution drug supplier confidentiality laws. Confidentiality serves the important interest of safeguarding remaining licensed drug sources and reducing the need to resort to questionable backroom sources abroad or old methods of execution such as firing squads. In contrast, eleventh-hour drug substitutions heighten the risk of unintended suffering because the death cocktail protocol has not been subject to sufficient adversarial testing, much less scientific evaluation. For those concerned about reducing harm, it is counterproductive to attack compounding pharmacies licensed as competent to produce drugs for the public. Rather the focus should be on sufficient notice regarding the lethal injection protocol to evaluate and challenge changes in cocktail combinations, which pose a far greater risk of harm.