Bill would shield execution-drug data

Senate measure proposes exempting documents from state’s records law

State prison officials have said for months they’re unable or unwilling to maintain a supply of execution drugs under laws allowing disclosure of the names of companies manufacturing the drugs.

On Monday, lawmakers filed a bill to end that disclosure.

The confidentiality provisions in Senate Bill 464, by Sen. Bart Hester, R-Cave Springs, and Rep. John Maddox, R-Mena, would give exemptions from the state’s Freedom of Information Act to any documents that “may” identify, or lead to the identification of, drug makers, suppliers, testers or transporters.

The plan quickly earned the support of Gov. Asa Hutchinson and Attorney General Leslie Rutledge, who together work to administer capital punishment in Arkansas.

A spokesman for Arkansas Department of Correction said Monday the agency had yet to take a position on SB464, which also includes criminal penalties for anyone who “recklessly discloses” documents covered by the proposed law.

The prison department, which holds 30 men on Death Row at the Varner Unit in Lincoln County, announced in July it ended its search for execution drugs, after the Arkansas Supreme Court ordered the agency to produce certain documents related to the drugs to members of the public who sought them through public records requests.

The method of execution used in Arkansas calls for a three-drug “cocktail” — comprised of the sedative midazolam, the paralytic vecuronium bromide and a heart-stopping dose of potassium chloride. The makers of those drugs have accused the Department of Correction of bypassing company controls in order to acquire the drugs from third-party suppliers.

Each of the three drugs once possessed by the department have expired, spokesman Solomon Graves said Monday, and the department has been unable to acquire replacements.

Other states faced with similar difficulties in maintaining supplies of execution drugs from pharmacists have turned to alternative methods. Last year, Oklahoma announced it would become the first state to switch to suffocation through nitrogen gas as its primary form of execution. Mississippi and Alabama have also approved the method, though it has yet to be tested, according to the Death Penalty Information Center.

Changing the method of execution, however, would likely result in years of subsequent litigation from the prisoners facing death. The state’s current protocol has been upheld by both the Arkansas and U.S. supreme courts, and some lawmakers have said they are hesitant about a change.

“I’d take them out behind the barn to shoot them,” said Hester, the sponsor of SB464. “But we can’t get that passed.”

Hester said he hoped by giving assurances of secrecy to suppliers willing to sell execution drugs to the Department of Correction, executions could resume before the end of the year.

Others, however, responded to the filing of the bill with concerns about transparency of the execution process.

“I want to give it more thought, but on first blush it appears to me that we should be more open and transparent with something as serious as the death penalty,” said Sen. Joyce Elliott, D-Little Rock, the chairman of a legislative subcommittee that oversees prisons.

Ashley Wimberley, the executive director of the Arkansas Press Association, said the bill and its criminal penalties for those disclosing documents related to executions would have a “chilling impact on free speech and whistle-blower rights.”

“They are taxpayer-funded actions that require transparency and accountability throughout the entire process,” Wimberley said. “In its current form, this bill keeps almost everything about this solemn government function shielded from public scrutiny.”

Asked how the public would be assured prison officials are using the correct drugs under the law without the records to back it up, Hester said people would simply have to trust the Department of Correction.

“The department’s saying they are,” Hester said.

Many of the world’s largest pharmaceutical manufacturers have for years been opposed their products being used to kill people, and have attempted to install controls among their distributors in order to keep their products out of the hands of state executioners.

In response, lawmakers have enacted laws to keep their drug suppliers secret.

The Method of Execution Act passed in 2015 allowed prison officials to keep confidential or redact records identifying the suppliers of the state’s execution drugs.

However, the law specifically allowed for the release of drug labels and package inserts, documents coming with the purchase of pharmaceutical drugs. After The Associated Press and other reporters later used those documents to identify the original drug makers — and the state Supreme Court upheld their disclosure under public records laws — several companies came forward and said the department skirted safeguards to obtain their products.

Third-party distributors and the eventual suppliers to the Department of Correction can face reprisals from manufacturing companies if they are found to have violated company protocols.

‘If you disclose anything, they go and shut down the provider,” Hester said.

Graves, the prisons spokesman, said Monday provisions of the bill making it a Class D felony — punishable by up to six years in prison — to “recklessly” disclose protected drug records weren’t part of the department’s input during the bill drafting process.

Both Hester and the attorney general’s office said they worked with Maddox and the governor to draft the legislation. Hester declined to say who included the criminal penalties for disclosure.

Amanda Priest, a spokeswoman for Rutledge, said SB464 would “ensure that lawful jury sentences are carried out for heinous acts committed by those individuals awaiting justice.”

Arkansas hasn’t carried out an execution since April 2017, when four men were put to death over a two-week period. The state originally planned eight executions that month, but half were halted by courts.

In part due to difficulties in maintaining a supply of drugs, and in part due to extensive litigation, the 2017 executions were the first carried out by the state in more than a decade.

“I’d take them out behind the barn to shoot them. But we can’t get that passed.”

— Sen. Bart Hester, R-Cave Springs