North Carolina has taken measures to gut the transparency of its execution process. Gov. Pat McCrory has signed into law HB 774, which classifies information on the manufacturers of lethal drugs and removes a requirement that the public be allowed to review and comment on proposed execution protocols. This makes it impossible for citizens, experts and the media to obtain basic information about the state’s process of executing prisoners. By cutting off public access to this information, North Carolina has shrouded in secrecy the implementation of the most serious punishment a state can impose.
The death penalty is not at issue in this controversy. The new law will not end North Carolina’s de facto moratorium on executions. Rather, it will extend litigation, create difficult legal questions and increase delays. For death penalty supporters, HB 774 is not the solution to resuming executions. It instead restricts accountability and transparency, allowing the government to hide basic information for no good reason.
The secretary of the Department of Public Safety, an unelected official, now has sole authority to choose execution procedures, unanswerable to public concerns.
Public notice and comment have long been a crucial part of policymaking in the federal and state governments. They provide a safeguard to ensure policies are fair, effective and constitutional, even on the most mundane topics such as driver’s license registration. Yet, for execution procedures, North Carolinians now have no opportunity to offer opinions before these protocols go into effect.
The foundation of our constitutional republic lies in accountability and transparency, enabling American citizens to learn and debate about policy. Yet citizens cannot engage in robust conversations when basic information is hidden. The media, experts and the public can no longer serve as effective monitors of government activity on this important issue.
Both supporters and opponents of the death penalty should be outraged. Until now, public access to this information has been considered a basic and crucial part of policymaking, not a harmful release of confidential data. Such secrecy has no place in a democracy, especially not for actions as irreversible as executions.
Concerns about these new limits to transparency are not just theoretical. A lack of public awareness of execution protocols could pave the way for lax regulations. In 2010, Arizona obtained lethal drugs from a company operating out of the back of a West London driving school. Other states have acquired lethal drugs from pharmacies that combine or alter ingredients, resulting in drugs not approved by the FDA. In some states, those being executed have struggled, apparently in pain or unable to breathe, because of the kinds of drugs used.
Regardless of our views on the death penalty, Americans must maintain a principled approach to its implementation. The standard ought to be the U.S. Constitution, which mandates the government impose no cruel and unusual punishments. As long as states implement the death penalty, we must ensure they follow this constitutional standard.
The Constitution Project’s Death Penalty Committee, in its recent report “Irreversible Error,” offered recommendations to prevent errors in the administration of capital punishment. They called for jurisdictions to act transparently in developing execution protocols, requiring some minimal safeguards. HB 774 completely eliminates several of these safeguards, making it difficult to ensure an aspect of state government functions fairly and constitutionally. North Carolinians should be asking themselves, “What does our government have to hide?”
Mark White is a former governor of Texas, having previously served as the state’s attorney general. Gerald Kogan is a former chief justice of the Florida Supreme Court. They are co-chairs of the Constitution Project Death Penalty Committee.