Court: Georgia Can Keep Execution Drugmakers Secret
By Bill Rankin
The Georgia Supreme Court on Monday upheld the state's lethal-injection secrecy law, saying it plays a "positive role" in the capital punishment process.
The 5-2 decision included a sharp dissent from two justices who expressed concern it could lead to "macabre" executions like the one that occurred in Oklahoma three weeks ago.
The ruling overturned a stay of execution granted by a Fulton County judge to condemned killer Warren Hill, and it is expected to clear the way for the executions of at least three other inmates whose cases have been awaiting the outcome of Hill's appeal.
The ruling comes on the heels of the bungled execution in Oklahoma, during which Clayton Derrell Lockett writhed and grimaced after he had been declared unconscious on the lethal-injection gurney. Prison officials tried to halt the execution, but Lockett died of a heart attack 43 minutes after the first drug had been administered. It turned out that one of Lockett's veins had collapsed, which prevented the drug from entering his system.
That execution prompted calls nationwide for more transparency in state execution methods. Last week, the Associated Press and four other news organizations filed suit against the state of Missouri seeking to learn the source of its lethal-injection drugs. Missouri's law keeps the identity of the "execution team" secret.
On Monday, the state Supreme Court said there are good reasons for Georgia's law, which makes the identities of lethal-injection drug suppliers a "confidential state secret." If the names are publicly disclosed, "there is a significant risk that persons and entities necessary to the execution would become unwilling to participate," Justice Harris Hines wrote for the majority.
Hines said he was mindful of arguments that disclosing the name of a compounding pharmacy that produces Georgia's lethal-injection drugs might enable condemned inmates and the public to more fully satisfy themselves that the state's execution method is humane.
Georgia's secrecy law, however, ensures that executions are "more timely and orderly" and safeguards what Hines called "significant personal interests." He wrote, "Accordingly, we also conclude that it therefore, on balance, plays a positive role in the functioning of the capital punishment process."
The U.S. Supreme Court has established thresholds that an inmate must clear when challenging executions on cruel-and-unusual punishment grounds. Among them: drugs to be used for executions are sure to cause needless suffering, pose a risk of serious harm or create an imminent danger. Hines said that Hill's lawyers had failed to show that the state had crossed any of those thresholds.
"We suppose that there could be serious questions about the constitutionality of the confidentiality statute" in a case where a condemned inmate came closer to presenting such a claim, Hines said. "This is no such case."
In recent years, Georgia and other states have scrambled to find lethal-injection drugs because pharmaceutical companies, in the face of criticism by death-penalty opponents, stopped allowing their drugs to be used for executions. Georgia's Department of Corrections has turned to compounding pharmacies to get its supply of pentobarbital, which it says it plans to use to carry out executions.
Justice Robert Benham, who authored the dissent, recounted what happened during Lockett's execution and said it was still unknown why that execution did not go as planned.
"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," wrote Benham, who was joined by Justice Carol Hunstein.
"There must be certainty in the administration of the death penalty," Benham said. "At this time, there is a dearth of certainty namely because of the scarcity of lethal injection drugs."
The fact that some drug providers may be subjected to harassment or public ridicule and the fact that prison officials may find it more difficult to obtain execution drugs "are insufficient reasons to forgo constitutional processes in favor of secrecy, especially when the state is carrying out its ultimate punishment," Benham wrote. The law creates "the very secret star chamber-like proceedings" the state has promised its citizens it would never allow, he said.
Much as the state of Oklahoma did in regard to the drugs it used in Lockett's execution, Georgia has made assurances that its compounding pharmacy can produce a high-quality execution drug, Benham wrote. "These assurances amount to little more than hollow invocations of 'trust us.'"
Hill, whose mental retardation claims have been rejected on prior appeals, sits on death row for killing fellow inmate Joseph Handspike by beating him to death at a state prison in 1990. At the time, Hill was serving a life sentence for the murder of his former girlfriend.
State attorneys expressed confidence in Georgia's lethal injections, noting that a 5,000-milligram dose of pentobarbital would be given to Hill -- more than 25 times greater than what's considered a lethal dose.
On Monday, a spokeswoman for state Attorney General Sam Olens said her office was pleased with the court's ruling.
In a statement, Hill's lawyers said the decision "effectively affords the state of Georgia 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."
Benham's dissent, the statement said, "correctly found that this decision conflicts with basic requirements of due process."
Hill's lawyers will ask the state high court to reconsider its decision and also take their appeal to the U.S. Supreme Court.
Megan McCracken, an attorney with the University of California-Berkeley Death Penalty Clinic, said the Georgia Supreme Court's ruling puts condemned inmates like Hill in "an impossible position."
"The court rejects as speculative Mr. Hill's claims that his execution using compounded drugs is likely to cause pain and suffering in violation of the Eighth Amendment, and yet simultaneously prevents Mr. Hill from gaining access to the information he needs to make a concrete claim," she said. "If Georgia wants to assure certainty and predictability in its executions, it must bring transparency to the process."
(c)2014 The Atlanta Journal-Constitution (Atlanta, Ga.)