Northwest Arkansas Democrat-Gazette
Judge: Release data on execution drugs
Details sought include business identities
A judge ordered on Monday that the state prison system release information about its execution drugs, including the manufacturer’s and supplier’s identities, by early next week.
The directive from Pulaski County Circuit Judge Wendell Griffen came just three days after he halted eight scheduled executions until an inmate lawsuit challenging the secrecy over lethal-injection drugs is decided at trial.
The case is set for trial at 9 a.m. on March 1 and March 2, according to the court file.
The Department of Correction has until Oct. 21 to identify the “manufacturer, seller, distributor, and supplier” of any lethal injection drugs to be used on any of the inmates in the lawsuit. Unredacted package inserts, shipping labels, laboratory test results, and product warnings must be produced by the same date, Griffen said.
If the state chooses, it has until Oct. 21 to move for a protective order to keep from releasing the information, according to the court order.
When contacted, Correction Department Director
Wendy Kelley declined to comment on the court order and referred all inquires to Arkansas Attorney General Leslie Rutledge, whose office acts as the correction system’s legal counsel.
When asked whether the state would disclose the execution drug information or request a protective order, attorney general spokesman Judd Deere said, “The attorney general is considering her options and will respond at the appropriate time.”
Jeff Rosenzweig — the attorney for the nine inmates who filed the court case in June — also declined to comment when contacted.
Griffen set a Jan. 10 deadline for all discovery in the case to be completed. A list of witnesses and exhibits will be exchanged on Feb. 15 and a pretrial hearing will be held at 10 a.m. Feb. 26.
The nine inmates — eight of whom have exhausted all appeals and were scheduled for execution in the coming months — said in the lawsuit’s
initial filing that the state’s new three-drug protocol that includes potassium chloride, vecuronium bromide and midazolam creates a “risk of severe pain.” The state’s refusal to name its drug suppliers makes it impossible for the inmates to determine if the drugs are safe and whether they would violate the ban on cruel or unusual punishment.
The prison system, in order to settle a 2013 lawsuit, agreed to release the identity of the drug manufacturers and suppliers in future executions. However, Arkansas Act 1096, passed in April, bars the state from releasing the names of the execution-drug suppliers without a court order.
State officials argued that shrouding the identity of the execution drug sources is necessary to protect suppliers from backlash from death-penalty opponents.
Midazolam — a common drug administered in a hospital setting for the treatment of seizures or for anesthesia purposes — has been linked to botched executions in Oklahoma and Ohio.
Oklahoma inmate Clayton Lockett’s body convulsed while he moaned and
clenched his teeth for several minutes before he died on April 29, 2014, 43 minutes after being injected with the drug. In Ohio last year, an inmate appeared unconscious, but then made loud choking noises before dying from a lethal injection of midazolam.
Rosenzweig, the inmates’ attorney, previously told the Arkansas Democrat-Gazette that the inmates need proof that the state is using a legitimate manufacturer and not procuring it from “a backroom supplier.”
In 2011, the state had to relinquish its supplies of the execution drug sodium thiopental to the U.S. Drug Enforcement Administration. According to court documents, the Correction Department had obtained the drug from Dream Pharma, a wholesale drug supplier that was run out of a driving academy’s offices in London. British authorities had banned exports of the drug in November 2010.
Continuous legal challenges have halted executions in Arkansas for the past 10 years. Erick Nance of Malvern was the last person put to death in the state. He was executed in November 2005 for the rape
and murder of an 18-year-old woman in Hot Spring County.
Executions are declining nationwide because of a growing lack of access by prisons to execution drugs and because of the number of inmates released from deathrow after evidence of their innocence was revealed, according to the Death Penalty Information Center in Washington, D.C. Executions have fallen every year since 1999 when U.S. executions peaked at 98. There were 35 in 2014 and 23 so far in 2015.
Pharmaceutical companies worldwide are putting the drugs off limits to executioners or, in some cases, have stopped making the drugs altogether. Regulations from federal agencies are also raising the bar higher for use of drugs in executions.
Arkansas state law follows federal guidelines in requiring that the U.S. Food and Drug Administration approves the execution drugs, which must be made by a federally-approved manufacturer and from a facility registered with the agency.
The Correction Department said that the execution drugs obtained in June are approved
by the FDA and meet the law’s other requirements. Written documentation was not available, department spokesman Cathy Frye said at the time.
The European Union in 2011 made it illegal for anyone to export the drugs to the United States for use in executions. With the exception of Belarus, the death penalty has been abolished in all European countries.
The FDA is also making it increasingly difficult for prisons to obtain lethal-injection drugs by saying in June that importing the drugs into the country could be illegal in light of recent federal court rulings. The agency blocked a shipment of sodium thiopental in June that was headed to Nebraska from a supplier in India.
Ohio executions are in limbo as state officials argue with the agency over importing the execution drugs. The state sent a letter to the agency on Friday saying they want to have discussions with the FDA because Ohio prison officials believe they can obtain the drugs from overseas without violating any safety laws.