Lift veil on execution Rx maker, judge says
State to appeal his ruling today
The Arkansas Supreme Court, which already has ruled that prison officials can withhold the supplier of their death- penalty drugs from the public, now will have to decide whether that secrecy extends to the manufacturer of the state’s execution chemicals.
Pulaski County Circuit Judge Wendell Griffen ruled Thursday that the secrecy provision of the state’s Method of Execution Act does not extend to manufacturers.
The Legislature could have excluded specifically pharmaceutical- makers from public disclosure but did not do so, he said in ordering the state Department of Correction to immediately turn over documentation about Arkansas’ supply of heart- stopping potassium chloride to Steven Shults, a Little Rock lawyer who sued to get the materials.
But within two hours of the decision, Attorney General Leslie Rutledge announced her intention to appeal Griffen’s ruling as soon as the Supreme Court opens for business this morning.
In Thursday’s hearing before Griffen, Shults’ attorney, Alex Gaines, argued that the 2015 execution law’s secrecy provision applies only to the state’s drug
supplier.
Griffen agreed and said the public is entitled to know that the death- penalty drugs the prison department plans to use to execute eight convicted killers within 11 days meet federal standards as required by law. The executions are scheduled to start April 17 and continue through April 27.
Separately Thursday, two federal judges in Little Rock scheduled hearings on two lawsuits filed this week by death- row inmates seeking to stop the executions on grounds the expedited timeline for the lethal injections violate their rights under the U. S. Constitution.
The execution law requires the men be put to death using three specific drugs.
The prisoners claim that the drugs won’t work properly to ensure them the pain- free death that they are guaranteed by the U. S. Constitution.
Arkansas was able to restock its supply of the heart- stopping chemical potassium chloride only earlier this month. Its supply of the anesthetic midazolam, the drug used to sedate the men before the killing chemicals are injected, expires at the end of April. The chemicals must meet federal potency standards.
The state’s Freedom of Information Act allows Arkansans to see for themselves whether authorities are obeying the law, rather than take the word of government officials they are doing so, Griffen said in his ruling.
“The only way the public can be assured that the [ prison] department is doing what it’s supposed to do is if the public has this information,” Griffen said.
The state Supreme Court has already ruled that the
state can withhold the identity of the supplier of the lethalinjection compounds.
That decision was part of the court’s 4- 3 ruling in June that allowed executions to resume after a hiatus of more than a decade that was caused by legal challenges from death- row inmates.
Griffen criticized that ruling earlier this week as a deliberate attack on the rights of the condemned killers.
Rutledge’s office represents the Correction Department and its director, Wendy Kelley, who contends death- penalty secrecy requirements bar the agency from releasing anything that might identify the origins of the drugs.
That protection extends to any part of the distribution pipeline the drugs passed through to get to Arkansas, beginning with the manufacturer, no matter how many times the drugs were bought and sold before being acquired by the state to be used for executing convicted murderers, department officials said.
That level of secrecy is necessary as long as the state needs to purchase chemicals to put inmates to death by lethal injection, they said.
Suppliers will not sell the drugs otherwise out of concern about harassment by antideath penalty activists, bad publicity for handling chemicals used in executions or efforts by drug manufacturers to prevent their wares from being used to kill, Correction Department officials said in court filings.
The Method of Execution Act requires the agency to release redacted labeling information,
but prison officials argue that they can’t even do that and comply with the secrecy requirements because the labels are so distinctive that even their shape gives away the identity of the manufacturer.
Colin Jorgensen, the senior assistant attorney general who represented the prison department Thursday, said during the hearing that the agency would not appeal the judge’s ruling if he allowed prison officials to redact qualitycontrol numbers from the labeling materials.
Prison officials say that if those numbers were made public, they could be used to determine the state’s drug supplier, Jorgensen said.
But Griffen, citing his experience as a product- liability attorney who had represented pharmaceutical manufacturers, said the prison department had no grounds to withhold even those numbers.
The numbers are required by federal regulators as part of the manufacturing process, the judge said, reading the parts of the federal law into the court record to emphasize his point.
Griffen said he reached his conclusion by considering the labeling- disclosure requirement and the execution law’s secrecy provision under the standards established by the state’s 50- year- old Freedom of Information Act.
If the Legislature had intended manufacturers to be withheld from public scrutiny, lawmakers could have put them on the list of entities contained in the execution law that are exempted from the open- records law, Griffen said.
Shults declined to explain his interest in the potassium chloride supply although his attorney told the judge that Shults, as a concerned citizen, wants to know who manufactured the chemicals, to ensure they meet federal standards as the prison department claims.