State secrecy about execution protocols and drug sources makes it difficult for condemned prisoners to argue about the constitutionality of execution by particular drugs, and prevents the press and the public from evaluating whether lethal injection executions are ethically or constitutionally permissible depending on the drugs being used (and the drugs’ quality and quantity). This article argues that state secrecy statutes concerning lethal injection drugs are unconstitutional because they impose on the public’s presumptive right of access to state-held information of this sort. It explores how the public’s right of access derives from the First Amendment, and argues that secrecy laws about lethal injection drug sources and protocols impermissibly burden the public’s right of access to that information.
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