Fordham Law


Georgia’s high court to take look at lethal-injection secrecy law

Deborah Denno in The Atlanta Journal-Constitution, February 16, 2014

Media Source

Georgia’s high court to take look at lethal-injection secrecy law
By Bill Rankin

The Atlanta Journal-Constitution

Georgia cannot carry out executions without a new law that shields from public view the identities of those who make and supply lethal-injection drugs to prison officials, state officials say.

But it is a legal challenge to the secrecy law, which took effect last year, that has ground executions here to a halt.

In July, Fulton County Superior Court Judge Gail Tusan ruled that the new statute was likely unconstitutional and stayed the execution of condemned killer Warren Hill. Since then, the state has scheduled no other executions.

Monday, the Georgia Supreme Court will hear arguments in Hill’s case and could ultimately determine whether Georgia’s lethal-injection secrecy law is constitutional. The court could avoid the issue altogether and decide whether Tusan had the authority to issue the stay. But the state Attorney General’s Office is asking the justices to address the issue head-on because it is “almost certain” a challenge to the law will be back before the court again.

The court is hearing the case at a time when prison officials in Georgia and across the nation are scrambling to obtain drugs that allow them to carry out executions. Just last week, Wyoming lawmakers considered but rejected the use of firing squads to execute condemned inmates, and Virginia legislators shelved consideration of bringing back the electric chair. The proposals were being considered because of the scarcity of lethal-injection drugs.

In court filings, the state Attorney General’s Office says drug makers and compounding pharmacies are unwilling to supply lethal-injection drugs if their identities are made public. If such disclosures are allowed, the state says, the businesses will “find themselves at the center of a firestorm of hate mail and midnight callers.”

This scenario is playing out across the country, state attorneys said. In Texas last year, a compounding pharmacy demanded the return of the drug it supplied for an execution due to harassment following public disclosure of the business’ name.

Because of the secrecy law, Hill’s attorneys say they have no means of determining whether the drug used to execute Hill will subject him to cruel and unusual punishment.

The law “denies the prisoner, the court and the public of the right to know information necessary to determine something as vital as whether the method of execution will be effective and free from unnecessary pain,” Hill’s lawyers wrote in their brief filed with the court. “… No state has the right to deny the public access to information on the ground that if the public knew the facts some members might express their discontent.”

Fordham University law professor Deborah Denno said states have understandably made it a point to shield the identities of those carrying out executions in the death chambers out of concern they could be threatened or attacked.

“But there have been countless botched executions with lethal injections over the years,” said Denno, who has studied the issue for two decades. “That makes it all the more troubling they’d have this new level of secrecy.”

After lethal injection was first used for an execution in Oklahoma in 1982, increasing numbers of states began using it as an alternative to the electric chair. In 1999, the Legislature gave Georgia that option — a year before the state Supreme Court banned electrocution.

By 2009, every state with the death penalty had switched to lethal injection, either as its sole method of execution or as an option, Denno said. But states soon began finding it difficult to secure lethal-injection drugs.

Georgia once used a three-drug cocktail to carry out its executions. But one of those drugs, the sedative sodium thiopental, became so scarce Georgia resorted in 2010 to buying its supply from Dream Pharma, a company that operated in the back of a storefront driving school in London, court filings say. In 2011, Drug Enforcement Administration officials seized Georgia’s supply of sodium thiopental after lawyers for a condemned inmate accused the state of improperly importing the drug from England.

The state Department of Corrections now uses a 5,000-milligram injection of the anti-convulsant pentobarbital, which is used to treat seizures and euthanize animals, for executions. But because pharmaceutical companies worldwide are refusing to allow their supplies of pentobarbital to be used in lethal injections, Georgia has turned to compounding pharmacies.

Hill’s lawyers note the compounding pharmacy industry is not subject to the Food and Drug Administration’s process for drug approval or rigorous FDA manufacturing standards. Deficiencies in the compounding process could lead to contaminants getting in the drug, causing Hill to experience “substantial pain, suffering and anguish from his execution.”

Hill sits on death row for using a nail-studded board to beat to death another inmate, Joseph Handspike, in 1990 at the state prison in Leesburg. At the time, Hill was serving a life sentence for the fatal shooting of his former girlfriend.

Hill’s case attracted the attention of the nation’s disability rights community last year when three state experts who initially testified that Hill was faking his intellectual disabilities changed their diagnoses. In sworn statements, the experts described their evaluations 13 years ago as rush jobs and say a better understanding of mental disabilities led them to believe Hill has mild retardation and is ineligible to be executed.

But Georgia’s courts have rejected Hill’s appeals on this issue, and the state parole board denied his request for clemency.