High court again rejects execution drugs’ secrecy

Case is second seeking identity of makers

A majority of the Arkansas Supreme Court repeated on Thursday its earlier opinion that the state’s Method of Execution Act does not allow the state prison system to keep secret the manufacturers of its lethal injection drugs.

A split majority of the high court made that ruling last year in a public records lawsuit brought by Little Rock attorney Steven Shults, who wanted documents related to one of the three drugs used in the state’s execution protocol. Shults then sued again to get access to documents surrounding another of the drugs, and it resulted in the justices reaching the same decision Thursday.

The decision handed down Thursday is unlikely to have the same effect as the justices’ ruling last fall, which forced the Arkansas Department of Correction to disclose who manufactured each of the three drugs the prison system was planning to use days later in a then-planned execution. But this time, the manufacturers of Arkansas’ drugs have already been identified, though they have been unsuccessful in their attempts to get their products back from the state.

That planned execution, of convicted murderer Jack Greene, was called off on unrelated appeals. Furthermore, the prison system lacks one of the three drugs needed to carry out lethal injections, after a batch of paralytics expired earlier this year. No more executions are scheduled.

Prison officials have said lethal injection drugs are getting harder to acquire as the suppliers fear being publicly linked to executions — which is why the prison system fought to keep secret the records surrounding the drugs.

A spokesman for the prison system declined to comment Thursday when asked

if the Supreme Court’s rulings were making it harder for the state to find willing suppliers of execution drugs.

In their pair of rulings, the justices have found that the 2015 Method of Execution Act, which was written in part to protect the identity of suppliers, does not extend those secrecy protections to the original manufacturers of the drugs.

The department may, however, redact certain information from drug labels and packages — including batch, lot and control numbers — that could identify suppliers along the distribution chain. On Thursday, the Supreme Court remanded a part of Shults’ public records suit back to the lower court and instructed Circuit Judge Wendell Griffen to identify what pieces of information can be redacted.

“Here, simply put, the holding from [Shults’ first lawsuit] is directly on point with the case before us, and we affirm the circuit court’s finding that the identity of the drug manufacturers is not protected under the confidentiality provisions” of the Method of Execution Act, Justice Karen Baker wrote for the majority.

As in the court’s Novem- ber ruling, Chief Justice Dan Kemp, along with Justices Robin Wynne, Shawn Womack and Rhonda Wood, signed onto partial concurring opinions.

Shults’ attorney, Heather Zachary, said she was “pleased that the court recognized that Arkansans should have access to critical information” surrounding execution drugs, though she disagreed with justices’ decision to continue to keep secret other information.

Prior to last year’s high court ruling in the first Shults lawsuit, several companies came forward and identified themselves as the manufacturers of Arkansas’ execution drugs.

Those companies — as well as Athenex Inc., which was publicly identified in documents released as a result of the court’s ruling — accused the Department of Correction of skirting company safeguards put in place to keep their products out of the hands of executioners.

If the Department of Correction is able to obtain a new batch of its recently expired drug, vecuronium bromide, it will be able to carry out executions anew. There is one death row inmate, Don Davis, who has exhausted his appeals and is eligible for execution.