Circuit Judge Wendell Griffen ruled today that the state law making execution drugs secret violated a settlement with Death Row inmates of a lawsuit over execution procedure.
He nullified the statute and ordered the state to provide plaintiffs with information about drugs obtained to carry out the lethal injection process by noon Friday . He said that information would not be subject to a protective order.
The judge said the 2015 law to make the information secret unconstitutionally broke a contract the state had entered with inmates.
The state has argued it would be difficult to obtain drugs if sources were revealed. Indeed. Drugmakers don’t want their drugs used for executions. The judge said it was telling that the state admitted its middleman supplier provided drugs only on the assurance the source wouldn’t be revealed because the manufacturer wouldn’t approve. He said the state had no duty to hold a supplier harmless for violating a manufacturer’s rule nor should it worry about criticism that might arise for a third-party from supplying such drugs. He said there was no provision in the Constitutiona that allowed secrecy of Correction Department vendors.
The judge said fthat the plaintiffs had a constitutional right to the information because historically it had long been provided and was public record when a law to restrict it was passed in 2015.
The judge noted questions about the reliability of drugs provided for executions and the botched execution in Oklahoma. This undermines any argument against the inmates’ right to know about the drugs.
The judge also declined to dismiss the inmates’ claim that the three-drug protocol planned by the state constituted cruel and unusual punishment. He said use of a paralytic, midalozam, will creates a “substantial risk” of prolonged pain. The state seemed to argue, he said, that:
….people condemened to death for committing murder have “no constitutional right to information or documents that may identify entities and persons who compound, test, sell or supply drugs for the execution process,” even when executions using lethal injections have been marked by pain that would fit the definition of “cruel mistreatment” if suffered by domestic pets and livestock in Ark.asas. The Court rejects the notion that domestic pets and livestock in Arkansas have the right to die free of unjustifiable and prlonged painl but that the constitutional guarangtee against “cruel and unusual punishment” found in the Arkansas Constitution allows people who commit murders to be put to death as if they ahve no entitlement to such right.”
He said this issue required trial.
The judge also dismissed the state’s effort to keep secret is spending on the lethal injection process. He said the Constitution mandates disclosure, rather than giving the legislature the option.
The suit was brought by nine inmates with scheduled execution dates, since stayed by the Arkansas Supreme Court for resolutions of these issues. I’ve asked the attorney general’s office and the inmates’ attorney for reactions.
UPDATE: No comment at this time from Attorney General Leslie Rutledge. Gov. Asa Hutchinson says the decision is troubling and seeking a stay was an option. His decision to set execution dates, of course, brought this matter to a head early.
UPDATE II: Rutledge will appeal and seek a stay of the ruling.
“Attorney General Rutledge has a duty to defend the State’s lethal injection statute and disagrees with Judge Griffen’s order. The Attorney General’s office has filed a notice of appeal and intends to ask the State Supreme Court for an immediate stay as quickly as possible.”