MFIA Clinic Files Lawsuit Asserting First Amendment Right to Information about Lethal Injection Drugs in Arizona

Yale Law School’s Media Freedom and Information Access Clinic (MFIA) has filed a federal lawsuit on behalf of Guardian US, the Associated Press, The Arizona Republic, the Arizona Daily Star, and two Arizona TV stations challenging the refusal of the Arizona Department of Corrections to disclose information about the source and quality of drugs used to carry out lethal injection executions in that State. The lawsuit asserts a First Amendment right of access to information concerning the means of carrying out state-sponsored executions, which has historically been available to the public and is essential for democratic oversight of the process.

Drugs previously used for lethal injections have become increasingly scarce due to drug manufacturers’ mounting opposition to their use in executions. According to the clinic, some states, including Arizona, have resorted to secrecy in order to maintain a continuing supply of execution drugs. Several of the plaintiffs in the new lawsuit had previously submitted letters to the Arizona Department of Corrections requesting access to the source, content, and quality of the lethal injection drugs used by Arizona, but were denied access to this information.

The lawsuit contends that this secrecy is a violation of the First Amendment. As the complaint alleges, information about state-sponsored executions in Arizona has historically been accessible to the public, whether the method of execution was hanging, the electric chair, or the gas chamber. Moreover, public access to this information helps ensure the execution process functions properly. The use of untested and undisclosed drug combinations has already resulted in complications, according to the clinic. This past summer, Arizona’s execution of Joseph R. Wood lasted nearly two hours, during which he was administered fifteen doses of a new two-drug cocktail.

Courts have held that the First Amendment guarantees access to certain government proceedings, where those proceedings have historically been open to the public and where public access plays a significant positive role in the functioning of government. The Ninth Circuit has previously held that the First Amendment provides a right for the public to view executions.

Emily Barnet ’15, a student in the Clinic who is working on the case, commented, “The press historically has played a critical role in informing the public about the means and manner of capital punishment, and this lawsuit seeks to ensure that it can continue to play that role as states experiment with lethal injection methods.” MFIA student Amanda Lynch ’16 added, “Detailed press coverage of executions has driven policy change in the past. The people of Arizona cannot meaningfully evaluate the state’s execution practices without information about the source and quality of the drugs used by the state.”

Ajay Ravichandran ’16, another participating student, explained how this lawsuit fits into First Amendment doctrine. “The First Amendment right of access to government information is vital because it’s much harder for citizens to exercise the other rights the Amendment protects, and to participate in self-government, without such access.” He added, “The right of access is especially important in the context of lethal injection, where the greatest harm the state can inflict is at stake.”

This lawsuit is the second brought by the MFIA Clinic challenging government secrecy regarding lethal injection drugs. Last spring the clinic filed a similar case in Missouri asserting violations of both the First Amendment and the state open records act, known as the Missouri Sunshine Law. MFIA student Jack Boeglin ’16 described his interest in these cases and said, “The public has a right to know whether lethal injections are being carried out lawfully and humanely.”

Student members of the MFIA clinic are supervised by David Schulz ’78 and Jonathan Manes ’08. The MFIA Clinic’s mission is to support robust investigative journalism and to promote the public’s right of access of information in defense of democracy. The MFIA clinic is a program of the Abrams Institute for Freedom of Expression at Yale Law School.