Lawyer sues for label of lead-off execution dose, earlier suit targets final drug
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-yearold 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 three-drug 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.
Now, Shults is asking for the labeling materials for the state’s brandnew supply of midazolam, the first drug that’s administered in the killing process. It’s used as a sedative to prevent the condemn inmates from feeling the affects of the other two chemicals, which are the killing drugs.
The second chemical administered is the anesthetic vecuronium bromide, which paralyzes the respiratory system and stops the condemned inmate’s breathing.
The state’s previous midazolam supply expired in April, after four killers had been put to death during an 11-day span. Prison officials had been set on executing eight men, at two a day, before the sedative lost its potency, but the courts granted new appeals to four of them. Gov. Asa Hutchinson has since granted clemency to one of the men.
The vecuronium bromide is expected to last through March 2018 before it become unusable, while the potassium chloride should last until August 2018, prison officials say.
The newly obtained batch of the sedative, which is said to be good through January 2019, cost $250. Prison officials disclosed last month that they had acquired 50 new vials. That revelation came as the attorney general announced she was asking for Gov. Asa Hutchinson to set an execution date for the only killer who has run out of appeals, 62-yearold Jack Gordon Greene.
Hutchinson obliged with a November death date. Greene is under a death sentence for killing Sidney Burnett, a retired Johnson County minister, in 1991. Green forced his way into the 69-year-old man’s home near Knoxville, where he bound and gagged Burnett, beat him with a can of hominy and also stabbed, shot and cut the man’s throat.
Greene was on the run at the time from North Carolina authorities after fatally shooting his brother and stealing his car.
Greene took Burnett’s pickup and fled to Oklahoma, where he was caught still carrying the gun he had used on both Burnett and his brother. The Arkansas Supreme Court overturned his original 1992 sentence on appeal, but a second jury’s death sentence in 1996 was upheld by the high court.