State Secret

Deborah W. Denno in The Arizona Capitol Times, October 14, 2013

Media Source

State secret
By Gary Grado - gary.grado@azcapitoltimes.com
Arizona Capitol Times
Published: October 14, 2013

Arizona tries to conceal identity of firm that makes chemical for lethal injections masks are synonymous with executioners.

So in keeping with that tradition, the Arizona Department of Corrections tried to follow other states and extend anonymity to the company that makes the chemical used in lethal injections.

DOC’s unsuccessful attempt to add a layer of secrecy to the execution process is just one of the ways prison systems nationwide have tried to deal with a shortage of the chemical pentobarbital and the reluctance of drug companies to allow their products to be used for killing.

States have either proposed or passed laws adding secrecy to the process as the drug supplies have run low and legal challenges to lethal injection have mounted, said Deborah Denno, a Fordham University law professor who has written extensively on the subject.

Georgia went so far as to pass the Lethal Injection Secrecy Act in March, which made the identities of those who make and supply the drugs for lethal injection a “state secret.” A Superior Court judge’s finding that the law is unconstitutional is being appealed to the Georgia Supreme Court.

Arizona protects the identity of executioners and “persons” who participate or help out in any way in an execution. The state tried to argue that the word “person” also can mean a business or other entity.

On Oct. 9, Arizona injected Edward Schad with an overdose of pentobarbital, a powerful sedative made by the Danish company, Lundbeck, as punishment for strangling Lorimer Graves of Yavapai County in 1978. Robert Jones, who was convicted on six counts of first-degree murder, is scheduled to die for his deeds Oct. 23.

Judge Roslyn Silver of U.S. District Court in Phoenix said the men have a First Amendment right to know what the state is going to use to kill them. She ordered the state to turn over information on the drug.

Assistant Attorney General John Pressley Todd was unable to convince Silver when he argued that the Arizona statute protecting the identity of an executioner also applies to private companies.

Todd fought in court for the confidentiality to shield the company from public criticism or harassment, because once the company’s identity is known the drugs stop flowing either because of a backlash or moral decision.

Lundbeck in 2011 began requiring purchasers to agree not to distribute pentobarbital to U.S. prisons for executions. Lundbeck said in a statement at the time it opposed the use of its products in capital punishment.

Texas dealt with the shortage by hiring a compounding pharmacy to make the drug.
Compounding pharmacies are regulated by states, not the Food and Drug Administration. They have been used mostly for mixing drugs for individuals — for example, someone who has an allergy to a non-active ingredient found in a mass-produced drug.

Public backlash
Todd’s evidence of a public backlash was an Oct. 4 letter from the owner of a Texas compounding pharmacy. The letter complained to state officials about the “constant inquiries from the press, the hate mail, and messages” the owner’s company has received since it became known it was the source of execution drugs. He also complained about being dragged into lawsuits filed by prisoners against the state.

“I find myself in the middle of a firestorm that I was not advised of and did not bargain for,” wrote Jasper Lovoi, owner of The Woodlands Compounding Pharmacy in Texas. “ Robin Konrad, a deputy federal public defender who argued for the name to be revealed on behalf of Schad and Jones, said DOC has an interest in carrying out humane executions, but no interest in what happens in the free market to companies.

She said the public has a right to express its dissatisfaction with a company that supplies drugs for executions, and companies have a right to withhold their products.
“It’s a medical company, and it announced that it was not going to participate in the killing of an individual, that their goal as part of the health care system is to provide care and treatment,” Konrad said.

In responding to Silver’s court order, DOC also revealed that the drugs will expire in November.

Doug Nick, a DOC spokesman, declined to say whether the department has pentobarbital that expires beyond November. Pentobarbital expires after 18 months.
“We do have what we need to carry out the two (death) warrants,” Nick said.
He said DOC makes sure it has a supply of the drug when the Arizona Supreme Court issues a warrant ordering an execution.

“There is no telling when the next one will be, months, years, we don’t know,” Nick said.

Denno said secrecy surrounding the practice is growing around the nation as legal challenges mount and supplies run short.

“The secrecy is particularly troubling because a number of states are reaching out to compounding pharmacies,” said Denno, who was an expert witness in a case that eventually became legal precedent for the constitutionality of lethal injection, Kentucky v. Baze.

Laws in other states
Besides Georgia’s secrecy law, Colorado has refused to reveal its drug maker and supplier while Arkansas completely seals all information pertaining to executions, Tennessee added “entities” involved in executions to be secret, and South Dakota’s law specifically states it is protecting the identity of the person or entity that supplies the drug. All three laws were passed in 2013.

A 2013 study released by Congress found that the regulation of compound pharmacies by most states is grossly inadequate and ineffective.
Nick said it will be up to policymakers to decide whether Arizona cloaks the identity of the drug makers and suppliers.

Despite DOC fighting in court to keep the name of the drug maker secret, Nick said the agency has no preference on whether a secrecy law is passed.
“We will comply with whatever the law is,” Nick said.

Citing a California case that allows the press to see a prisoner being prepped for execution, Silver said executions have historically been public events and the means of execution have been obvious to all, whether it be a rope, sodium cyanide gas, or electricity.

“The public could not only view the prisoner’s death, they could see the precise cause and its effects,” Silver wrote.