State Ordered to Disclose Execution Plans

State secrecy about Colorado’s death penalty protocols has been deemed illegal by a Denver District Court.

The Colorado Department of Corrections “has failed to demonstrate that disclosure of a properly redacted Execution Protocol would be contrary to the public interest,” Judge R. Michael Mullins wrote in a ruling Thursday. “Particularly in light of Governor Hickenlooper’s recent reprieve, which calls for a public conversation about the death penalty in Colorado, disclosure of these records would further the public interest.”

The ruling comes after the American Civil Liberties Union of Colorado sued the Corrections Department in May about the details of how it would, if necessary, mete out capital punishment in the state.

The Department was scheduled to execute convicted murderer Nathan Dunlap this month – 20 years after he killed four people at an Aurora Chuck E. Cheese’s restaurant. But in May, Gov. Hickenlooper granted Dunlap a reprieve, calling for a statewide conversation about the death penalty after lawmakers, at his urging, killed a bill to abolish capital punishment.

The ACLU long has opposed the death penalty in Colorado. It had sought specifics about how the prison system would have executed Dunlap, and then pursued its lawsuit even after Hickenlooper’s decision. The group wants details about the training, protocols and procedures the department has put in place since carrying out its last execution, that of Gary Davis, in 1997.

Of particular interest is how lethal injection would be implemented. Davis was put to death with a so-called three-drug cocktail that included a non-lethal dose of barbiturate or anesthetic, followed by a drug that paralyzed him and then a drug that induced cardiac arrest. Critics say that method, as applied in several states, is prone to errors and missteps that have resulted in botched executions and excruciating pain.

Now that Dunlap has been reprieved, two men remain on Colorado’s death row. The details of how officials would put them to death are needed to fully discuss the legality, ethics and efficacy of the state’s capital punishment policies, the ACLU argued.

The court agreed.

“CDOC’s decision to withhold records related to its Execution Protocol procedures constitutes an abuse of discretion in violation of the [Colorado Criminal Justice Records Act],” Judge Mullins ruled.

Corrections Department spokeswoman Alison Morgan didn’t know about the ruling when contacted Thursday evening. She said she planned to consult with the attorney general’s office before responding.

Thursday’s ruling is expected to force the state to reveal which drug or drugs it plans – or at least was planning – to use in its next execution.

Colorado law states that the death penalty is to be carried out by a lethal dose of a single drug. A redacted version of a CDOC document released in 2011 revealed evidence suggesting that the department was not planning to follow the single-drug law, but instead use the three-drug combination that has been the source of problematic executions in other states.

“With today’s ruling, it’s a good day for transparency in Colorado,” said Mark Silverstein, legal director at the ACLU. “We look forward to receiving the document that the court has ordered CDOC to disclose.”