A Little Rock lawyer is suing the Arkansas Department of Correction for violating the Freedom of Information Act by not releasing the labels and package inserts of the first drug used in the state’s three-drug execution protocol, the controversial sedative midazolam.
Steven Shults — who filed a similar suit in March requesting the labeling of another execution drug, potassium chloride — says in an affidavit that he asked for the labels on Aug. 21 and was told, via email, that labels were exempt from FOIA. (You can read that affidavit here and the email, denying the FOIA, here).
At issue is the language contained in the Arkansas Method of Execution Act, which is the state’s public information law concerning execution drugs.
Solomon Graves, a spokesperson for ADC, told Shults, in an email, that:
This same logic was used by ADC when Shults filed a previous suit regarding the potassium chloride labels. That argument was rejected by Circuit Court Judge Wendell Griffen, who ruled in favor of Shults. But, the Arkansas Supreme Court blocked the release of information and is to review Griffen’s decision.
ADC Director Wendy Kelley has said it is crucial that ADC retain the ability to keep secret those who supply and manufacture its execution drugs because drug companies do not want to be involved in executions.
Keep in mind: there is both a supplier and a manufacturer of execution drugs. Sometimes a manufacturer can sell its drugs to a supplier and then the supplier — a middleman of sorts — will sell that drug to a state for executions, even if the manufacturer does not want the drug used to kill an inmate.
Assistant Attorney General Jennifer Merritt admitted before that Arkansas did use this loophole in obtaining execution drugs. In a separate hearing in front of Judge Griffen, Merritt said, “the supplier has a contract with the manufacturer of the FDA-approved drug that is currently in the ADC’s possession whereby the supplier is contractually not supposed to be selling drugs to state departments of correction for use at execution. This supplier did anyway in an effort to aid the State” (my emphasis added).
Shults’ FOIA request came three days after ADC announced on Aug. 17 it had obtained more midazolam, paying for the vials with cash, leading to the setting of the execution date of Jack Gordon Greene, a convicted killer, for Nov. 9.
This came as a surprise after Arkansas received national attention for planning eight executions in a historically short period in April, a timetable established because the state’s supply of midazolam was set to expire at the end of that month and ADC Director Wendy Kelley said it would be hard for the department to obtain more.
Many have also claimed that midazolam is ineffective as a sedative to ensure that pain does not occur during an execution. (Here is a long report detailing the problems with midazolam.)
As I wrote at the time of that announcement, one has to ask: If Arkansas planned to kill eight men in 11 days because its drugs were running out, how has the state already acquired the drugs again?
“It was stated that it would be difficult but not impossible [to acquire the drugs],” J.R. Davis, a spokesperson told me then.
More recently I asked Director Kelley at a Department of Corrections meeting if, now knowing that additional drugs would be available, she thought the planning of the four double executions in April was a mistake. She refused to comment.
Just a reminder of some of the details behind how Arkansas has obtained drugs for executions:
– The most recent batch of midazolam was bought with $250 cash on Aug. 4.
– One supplier immediately asked ADC to return the drugs it had sold the agency, Kelley said during testimony in federal court earlier this year. (From my reporting that day: “[Kelley] told the court that these drugs were bought from a supplier and then — that same day — the supplier contacted her to undo the deal. The supplier wanted the drugs back. ‘But, I did not return the drugs,’ she said. The supplier continued to contact state officials and Kelley, according to her testimony, in an attempt to have the drugs returned.)
– Kelley personally drove to pick up the potassium chloride, put it in her car and then began a conversation about the method of payment with the supplier. She told the supplier that the payment would have to be processed through another department and, according to Kelley, “[the supplier] said, ‘Nevermind, I’ll just donate it.’ ” The supplier was worried about his or her identity being revealed to the public through the payment process.