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Execution-Drug Secrecy in Georgia Upheld

A law that lets Georgia keep the source of execution drugs confidential is constitutional and protects significant personal interests, the state’s high court ruled.
     The 5-2 decision Monday reverses a stay of execution granted to convicted murderer Warren Lee Hill.
     Hill failed to show how the state’s refusal to disclose the source of a drug to be used in his execution violated the constitutional ban against cruel and unusual punishment, the majority found. While the confidentiality statute keeps some aspects of Georgia’s execution method from the public, “on balance, [it] plays a positive role in the functioning of the capital punishment process,” the 33-page opinion states.
     The dissent notes that confidentiality may undermine the public’s faith in the integrity of the justice system, and may lead to botched executions, as happened last month with the execution of Clayton Lockett in Oklahoma.
     Hill, 44, is on death row in Jackson for killing a fellow inmate at Lee County Correctional Institute in 1990 with a nail-studded wooden sink leg.
     Hill had been serving a life sentence at Lee County for the 1985 murder of his 18-year-old girlfriend, whom he shot 11 times. After Hill’s multiple state and federal habeas petitions failed, the sentencing court scheduled his execution for the period of July 13-20, 2013. Georgia used a compounding pharmacy to get pentobarbital for Hill’s planned execution, and declined to identify the source, citing a 2013 “execution-participant confidentiality statute.” The law allows the state to keep secret the identities of people and entities involved in the execution process, including those who supply execution drugs.
     Hill challenged the constitutionality of the statute, asking the Superior Court of Fulton County to stay his execution and order sealed discovery of the compounding pharmacy and its supply chain. He claimed that he needed to know the drug’s source to allege cruel and unusual punishment under Georgia and federal law.
     The court stayed Hill’s execution, finding there was a substantial likelihood he would succeed on some of his constitutional challenges.
     A majority of the Georgia Supreme Court found Monday, however, that the confidentiality statute is not unconstitutional, and that the stay of Hill’s execution amounts to an abuse of discretion.
     If dismissed as moot, the case could become “a classic example of a matter that is capable of repetition yet evading review,” Justice P. Harris Hines wrote for the majority.
     The challenged drug has since expired, but Georgia can get a new drug and refuse disclosure, leading the lower court to block its use on the same grounds, and the drug would expire once more before the Supreme Court could rule on appeal, according to the ruling.
     The lower court also had valid, albeit limited jurisdiction over Hill’s constitutional claims, the justices concluded. The type of drugs used during executions and how information about them is managed do not concern the validity of Hill’s death sentence, which could be challenged only in the sentencing court. Instead, they merely concern how the death sentence is carried out, making superior court the proper venue for Hill’s claims against state officers charged with carrying out the sentence, the court found.
     Superior courts have the authority to enjoin state officers under its jurisdiction from using or directing the use of specific drugs in carrying out a death sentence, according to the ruling. They can also order state officers to disclose related information within their control, but they cannot stay execution orders by the sentencing courts, the majority concluded.
     It is also not necessary in Hill’s case for Georgia to provide forms of discovery that the confidentiality law does not forbid, such as giving Hill a sample of the drug to be used in his execution, the court found. This is because Hill failed to show how detailed information about the drug’s manufacturers could support his Eighth Amendment claim, according to the ruling.
     Georgia willingly disclosed that Hill’s execution drug came form a compounding pharmacy, a type of pharmacy that compounds medication according to individual prescriptions, the ruling notes. It had also ordered independent laboratory testing of the efficacy of the drug, and provided a redacted copy of the report to Hill.
     Hill’s expert failed to persuade the court that drugs produced by some compounding pharmacies – under state, rather than federal, oversight – are contaminated or lack potency and could lead to painful or fatal side effects. Most complications that the expert cited are unlikely to occur with the use of pentobarbital, a drug commonly produced in compounding pharmacies, which fill millions of prescriptions per year in the United States, the opinion states.
     Even if there is some risk that a lack of sterility could lead to allergic reactions or negative effects, those claims are irrelevant in an execution inducing nearly instantaneous unconsciousness and the onset of death before consciousness is regained, according to the ruling.
     Since Hill had failed to show a “substantial risk of serious harm” in support of his Eighth Amendment claim, his speculation regarding a possible threat of harm was insufficient to support a stay of execution, the court concluded.
     Hill’s due-process and lack-of-access to the courts claims also fail because he could not show that obtaining the requested information would support his speculative and unfounded claims, the majority opinion states.
     As for Hill’s First Amendment claim, although tradition upholds some public access to execution proceedings, it also favors protecting the identities of those involved in the process, who might not be willing to participate otherwise, the justices said.
     “Although the identity of the executioner who actually inflicts death upon the prisoner is the most obvious party in need of such protection, we believe that the same logic applies to the persons and entities involved in making the preparations for the actual execution, including those involved in procuring the execution drugs,” Hines wrote.
     Access to information regarding the compounded lethal injection drugs may offer the public some assurance that Georgia’s method of execution is humane, but the majority concluded that “the execution process is likely made more timely and orderly by the execution-participant confidentiality statute, and, furthermore, that significant personal interests are also protected by it.”
     The dissent by Justice Robert Benham says that the risk of harassment or public ridicule to drug providers, and the state’s difficulty in obtaining execution drugs, are “insufficient reasons to forgo constitutional processes in favor of secrecy, especially when the state is carrying out the ultimate punishment.”
     Clayton Lockett’s botched execution in Oklahoma, one of states that refuse to disclose the source of execution drugs, exemplifies this need, Benham wrote. During his execution, Lockett twitched and mumbled, even after being declared unconscious, and died 43 minutes after the first drug had been injected, according to court records. Autopsy results are pending, but Oklahoma prison officials said Lockett’s vein collapsed and some of the lethal drugs may have been absorbed into his tissue or leaked out.
     “I write because I fear this state is on a path that, at the very least, denies Hill and other death row inmates their rights to due process, and, at the very worst, leads to the macabre results that occurred in Oklahoma,” Benham wrote.
     “There must be certainty in the administration of the death penalty. At this time, there is a dearth of certainty namely because of the scarcity of lethal injection drugs. Georgia’s confidential inmate state secret statute does nothing to achieve a high level of certainty. Rather, the law has the effect of creating the very secret star chamber-like proceedings in which this state has promised its citizens it would not engage.”
     Hill may be able to make more specific claims of cruel and unusual punishment with access to information from Georgia, according to the dissent, which Juctice Carol Hunstein joined.
     Benham and Hunstein said Hill deserves information about the pharmacy that produces his execution drug and its supply chain, under appropriate safeguards to minimize the risk of harm to those who are simply doing their jobs.
     Brian Kammer, an attorney for Hill, did not return a request by Courthouse News for comment. He told the Associated Press that the ruling “effectively affords the state of Georgia carte blanche to alter their lethal injection protocol in any way it sees fit, and to conceal from the public and even the courts the identity and provenance of the chemicals it intends to use to carry out executions.”
     A Georgia spokeswoman said state officials were pleased with the court’s decision, but declined to comment further on the pending case.