HESTER: Files bill to further shroud the government's "supply chain" for illicitly acquired killing drugs in secrecy.


Sen. Bart Hester
today filed a bill to increase the secrecy related to the drugs used by the state in executions.

Arkansas’ supply of the drugs used for lethal injections has expired, and the state has had difficulty obtaining such drugs because manufacturers do not want to sell them for use in executions. Unable to acquire the drugs through conventional channels, the state has relied on clandestine intermediaries to acquire the drugs. A state law keeps the identities of these middle-men supplier secret, but the state Supreme Court ruled in a series of Freedom of Information cases that the state was required to disclose certain manufacturer information — package inserts and drug labels that can be used to trace the drugmaker.

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Hester’s bill would explicitly bar that information from being disclosed as well, and make it exempt from the Freedom of Information Act and discovery under the Arkansas Rules of Civil Procedure. It would prohibit the release of “documents, records, or information that may identify or reasonably lead directly or indirectly to the identification” of drugmakers or suppliers.

Governor Hutchinson has backed such a change. “Because the law had a gap in it that didn’t include manufacturers, the whole intent of the original law has been prevented,” Hutchinson told the Associated Press in July. “So it needs to be amended so the original intent is accomplished so that the supply chain for the supplier of lethal injections is confidential.”

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Civil liberties groups such as the ACLU have objected that this additional layer of secrecy would increase the risks of botched executions and mishaps that violate the Eighth Amendment’s prohibition of cruel and unusual punishment, eliminating the ability of citizens to monitor what drugs the government is using to carry out killings. “This proposal would make the state’s execution process even less transparent and more prone to abuse,” said Rita Sklar, ACLU of Arkansas Executive Director, after Hutchinson expressed his support for the measure last summer.

The Associated Press used the disclosure of package inserts and drug labels in 2017 to report that New York pharmaceutical company Athenex made one of the drugs used by the state; Athenex objected to the use of its product in executions and stated that whatever means Arkansas used to acquire the drug came in violation of the company’s agreements with distributors. Another manufacturer, McKesson, filed a lawsuit to try to stop the state from using a drug it had manufactured in executions and reclaim its property, alleging that the state had acquired it through illicit means. Circuit Court Judge Alice Gray found in favor of McKesson and barred the use of the drug, but the state Supreme Court stayed the order and the state carried out four executions in eight days. 

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Hester’s bill is an effort to spare the state from such battles so that it can proceed with its shady practice of using unauthorized dealers to acquire drugs that it cannot buy through the normal, legitimate channels — because the drugmakers want no part in selling it to the state for use in killing.

The bill complains that there is a “well-documented guerilla war being waged against the death penalty.” So we must shroud the government’s activities in secrecy, we must cover up the means by which the government kills, we must enable the government to go unfettered into the black market — ahem, the “supply chain” — to get ahold of its killing drugs. 

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