Lawyer sues for execution drug disclosure

Three weeks after Arkansas prison officials revealed they are ready to resume executions by having restocked a required sedative, a Little Rock lawyer is suing to force them to disclose the drug’s labeling materials.

This is Steven Shults’ second time this year to take the Arkansas Department of Correction to Pulaski County Circuit Court over a complaint that department Director Wendy Kelley is violating the state Freedom of Information Act and public-disclosure requirements written into the Arkansas Method of Execution Act.

The execution law mandates the drugs that are to be used for the lethal injection and empowers the Correction Department to set up the execution procedure. It also bars the agency from disclosing much about how it acquires the three drugs used for lethal injection. Arkansas’ only scheduled execution is set for Nov. 9.

Asked Thursday to explain Shults’ interest in the drugs, his attorney Alec Gaines said the 65-year-old lawyer wants to verify that prison officials are complying with the execution law. Shults is seeking a hearing before Judge Mackie Pierce within a week, but that proceeding has not yet been scheduled, Gaines said.

Shults prevailed in his first lawsuit in March, when he sued to see the labeling for the state’s 100-vial supply of the heart-stopping chemical potassium chloride. It’s the most lethal component of the threedrug protocol and the final one to be administered in the lethal-injection process.

State lawmakers imposed the secrecy requirements on the death-penalty chemicals after pharmaceutical manufacturers and sellers complained they were being harassed by anti-death penalty foes for selling drugs for executions.

Some countries have outlawed selling medications for use as lethal-injection drugs, and companies that are based outside Europe but also operate there can be subject to overseas sanctions for providing the chemicals. Manufacturers also dislike the bad publicity that comes from using otherwise medically necessary drugs to kill.

Kelley has said no one will sell the lethal chemicals to Arkansas if their identities have to be disclosed, and she had to be granted special authority by the Legislature to purchase the required drug while bypassing the requirement that a doctor endorse the purchase.

The state is currently fighting off a lawsuit by a medical supplier that claims one of Kelley’s deputies tricked a salesman into selling the prison department one of the chemicals, an anesthetic.

The drug’s manufacturer, Pfizer, has also complained about Arkansas use of that anesthetic for executions.

In March, Judge Wendell Griffen agreed with Shults’ argument that the secrecy requirements established by the Legislature only extend to the drug supplier, not the manufacturers that are responsible for the chemicals’ labeling.

Lawmakers did not specifically exclude drugmakers from public disclosure the way they specifically protected the identities of the chemical suppliers, Griffen stated in his ruling ordering the labeling documents be released immediately.

But the materials’ release was quickly blocked by the state Supreme Court acting on a request from Arkansas Attorney General Leslie Rutledge to stay Griffen’s ruling until the justices could review his decision in an appeal from the prison department.

That appeal process is ongoing with the state’s first written arguments due in two weeks, indicating a schedule that could keep the high court from having enough time available to rule until the new year.

With no final decision from the justices, prison officials rejected Shults’ August request for labeling materials by relying on the same arguments they used in March, that the law prevents them from disclosing anything about the maker or provider of the execution drugs.

They say they cannot release the labeling materials because the documents are so distinctive in shape, size and wording — even spelling and punctuation — that even the redactions allowed by law can’t obscure who manufactured the chemicals.

The prison department took that position after The Associated Press figured out the manufacturer of one chemical in 2015 by comparing the redacted materials to readily available information on the Internet.