State seeks waiver on order to reveal lethal-drug source

The Arkansas attorney general’s office Wednesday asked a circuit judge to waive his order requiring the state to disclose the source of its lethal injection drugs to prisoners challenging the state’s execution law.

State attorneys asked Pulaski County Circuit Judge Wendell Griffen to grant a protective order that would “shield” prison officials from Griffen’s Oct. 12 order to share the identity of the drugs’ supplier.

Alternatively, state attorneys wrote in Wednesday’s filing, Griffen could issue a protective order that would allow only the inmates’ attorneys, and not their death-row clients, to learn the supplier’s identity.

The request comes a day after the Arkansas Supreme Court lifted Griffen’s stay of executions for eight Arkansas inmates. The high court then imposed its own stay pending a March 1 trial in Griffen’s court on the prisoners’ lawsuit challenging Act 1096 of 2015.

That law forbids state officials from disclosing the source of lethal injection drugs obtained by the state. The law was enacted because of drug suppliers’ fear of negative publicity for supplying drugs for executions.

Wednesday was the deadline for the Arkansas Department of Correction to comply with Griffen’s order that it disclose information identifying the drugs’ manufacturer, seller and supplier as well as other information related to the transaction.

State attorneys argued that the protective order is necessary for several reasons.

For one, they said in their filing, the prisoners waived their right to the discovery process when they filed a motion for a partial summary judgment, a motion that implies that there are no factual disputes in the case. Disclosing the drugs’ source would be “the equivalent” of already deciding the case, state attorneys argued.

They also argued that disclosure would violate Act 1096 and would make it very difficult, “if not impossible,” for state prison officials to obtain drugs in the future.

Arkansas has not executed a death-row inmate since 2005 because of a series of legal challenges and shortages of lethal injection drugs.

Act 1096 does allow the state to use electrocution in an execution, but only if the lethal injection process is invalidated by a court order that cannot be appealed.

The eight inmates, as well as another death-row inmate whose execution has not been scheduled, filed suit against Act 1096 in late June, arguing that they had a right to inspect the source of the drugs to ensure that the executions would be done humanely. On Sept. 9, Gov. Asa Hutchinson scheduled the eight inmates’ executions.