Executioner Identities: Toward Recognizing a Right to Know Who is Hiding Beneath the Hood

By ELLYDE ROKO Fordham University - School of Law

Abstract:

The doctor had more than twenty malpractice suits filed against him. Two hospitals had revoked his privileges. He testified that he had dyslexia and sometimes confused drug dosages. This same doctor also supervised the lethal injections of fifty-four inmates in Missouri over a decade. For ten years, the public, the press, and the condemned inmates themselves did not know about the supervising executioner's qualifications in Missouri.

Historically, executioners have hidden beneath a hood - both literally and figuratively. Much has changed, however, since the early days of the death penalty.

Lethal injection, a far more complex procedure requiring specially trained individuals, has replaced simpler methods of execution. Examples of botched executions highlight concerns over whether states should be allowed to keep executioner identities confidential. Yet states have refused to make the changes needed to guarantee that qualified personnel carry out the state-sanctioned killing.

Various interests come into play: the First Amendment rights of the public and press to know the qualifications of the person carrying out the publicly sanctioned punishment; the right of the public and of the inmate to know that the punishment will be carried out in a humane manner; the authority of the prison to maintain order and security; and the responsibility of the state to protect the executioner.

Recently, courts have found that unqualified executioners contribute to the unconstitutionality of lethal injection. Revealing executioner identities would allow the public to hold the state accountable for the qualifications of executioners and, as such, would result in more precautions in selecting executioners and increase the probability of a more humane execution that does not violate the mandates of the Constitution.

Ellyde Roko
Fordham University - School of Law 140 West 62nd Street New York, NY 10023 United States
roko@law.fordham.edu