Georgia lawmakers saw secrecy as the only way to ensure it could get drugs for executions from businesses that otherwise would face public pressure and pickets.
But a new state law that shields from public view those companies that produce and mix execution drugs may be unconstitutional, a Fulton judge ruled this week.
It’s new legal territory, one that could delay future executions and could set the stage for a protracted legal fight that the state and the nation’s highest courts will likely have to decide.
At issue is whether the public, as well as the person facing execution, has a First Amendment-protected right to know if the drugs used in a lethal injection came from a lab with a good history, were made by a trained pharmacist and are safe and unlikely to cause pain in those final moments. That information is important in determining whether another constitutional right, the Eighth Amendment protection against cruel and unusual punishment, is upheld.
So far, only courts in two states have addressed the legality of such privacy laws. A Fulton County Superior Court judge stayed Warren Hill’s execution — which was set to occur Friday for a 1990 prison murder — to allow for more time to consider the weighty question. South Dakota’s law was adopted this year, like Georgia’s, but it has not yet been challenged in court.
Three other states — Florida, Arkansas and Tennessee — have laws keeping that information secret while a few more have policies, not as binding as statutes, keeping the identities of lethal-injection drug providers secret.
“Sounds like it’s on the cutting edge,” said University of Virginia law professor Carl Tobias, an expert on lethal injection.
Over the past few years, capital punishment states have struggled to secure drugs to carry out executions. Pressure from death penalty opponents has factored into big drug companies with bases in Europe refusing to sell certain drugs for capital punishment. Sentiment against the death penalty is strong among Europeans.
As a result of bad publicity and protests designed to force lethal injection drug makers to withdraw or adopt end-user restrictions, state-by-state stocks have expired, leaving states looking for other avenues. Georgia’s entire stock of lethal injection drugs expired in March. Its newest batch will expire in the fall.
Compounding pharmacies, armed with a guarantee of anonymity, are now the preferred method to acquire execution drugs.
“There has been difficulty acquiring the necessary medication to carry out lethal injections,” said State Rep. Kevin Tanner, R-Dawsonville, one of the sponsors of the law that took effect on July 1.
Tanner said the legal challenge was expected.
Judge Gail Tusan wrote Thursday after hearing a motion to stop Hill’s execution that if the identity of the producer of lethal injection is a secret there is no way to know the quality or efficacy of execution drugs.
Tanner said concerns about the quality of the compounded drugs are unfounded, and he has “confidence” that the Department of Corrections can carry out safe executions with compounded drugs and there is no need to make public where the drug was made.
The new law also says the secret information cannot even be provided to the court.
“While it is the case that such individuals (drug makers) should be free from harassment, the court must weigh the rights of those individuals against the rights of the condemned inmate as well as the public to know where and how these drugs are produced,” Tusan wrote.
Attorney Brian Kammer said Georgia’s history suggests oversight is needed.
The Department of Corrections bought several batches of sodium thiopental from Dream Pharma, a company operating in the back of a London storefront driving school. But in March of last year, the U.S. Drug Enforcement Administration, tipped off by the attorneys for a death row inmate, seized the state’s stock because Georgia was not registered to import drugs.
Georgia then substituted the powerful sedative pentobarbital, used to treat seizures and to euthanize animals, for the no-longer-available sodium thiopental. But a few months later, the Danish company Lundeck said it would not sell its pentobarbital if it was to be used in executions.
Last year, the Department of Corrections’ stock of another drug in the series Georgia used, the paralytic pancuronium bromide, expired and there was no more to be had. The Israeli pharmaceutical company Teva had put restrictions on how its product could be used.
Georgia abandoned the three-drug cocktail process and became the seventh state to use only one drug to carry out executions.
Georgia’s stock of pentobarbital obtained from a mass manufacturer expired in March. And its supply of the sedative obtained from a compounding pharmacy will expire on Aug. 8, according to court records.
“We know that they have been willing to cut corners and go through unorthodox … and illegal routes to obtain their drugs,” Kammer said. “They don’t get the benefit of the doubt.”
Condemned killer Warren Hill escaped execution once again Friday night because the state attorney general’s office was unable to appeal a stay of execution granted by a Fulton County judge.
Hill’s execution had been set for 7 p.m. Friday earlier this week by the Department of Corrections.
The attorney general’s office needed a transcript of this week’s hearings before Superior Court Judge Gail Tusan to file its appeal, and the transcript will not be ready until Monday, office spokeswoman Lauren Kane said.
Hill’s lawyer Brian Kammer, who also is asking the U.S. Supreme Court to throw out Hill’s death sentence on claims Hill is mentally retarded, said he was glad his client was given another reprieve.
“We are deeply relieved that Warren Hill will not be executed tonight in order for the courts to more thoughtfully deliberate Mr. Hill’s mental retardation claim and the extreme secrecy surrounding Georgia’s lethal injection law,” Kammer said.
Tusan had initially granted Hill a stay of execution on Monday and extended it at the close of a hearing on Thursday. She said a new law that keeps secret the identities of those who make and supply Georgia’s lethal injection drugs may be unconstitutional.
The warrant ordering Hill’s execution expires at noon today. For this reason, state attorneys will have to go back to a state court judge to get a new warrant, which gives the state a one-week window to carry out an execution.
— Bill Rankin