AT LAST, STILL SHAMELESS. The demagogue Sen. Bart Hester.


Sen. Bart Hester
‘s bill to increase the secrecy related to the drugs used by the state in executions passed on a party-line vote out of the Senate Judiciary committee yesterday and is on to the full Senate.

All five Republicans on the committee backed the measure; all three Democrats were opposed.

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“The secrecy that this bill furthers and enhances from existing law effectively would create a black market in execution drugs,” said Sonny Albarado, an editor for the Arkansas Democrat-Gazette and member of the Arkansas Freedom of Information Coalition, testifying against the bill.

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. Violation of the prohibition would be a Class D Felony, punishable by up to six years in prison.

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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Albarado, of the Arkansas Freedom of Information Coalition, said that opposition to the bill was not a matter of support or opposition to the death penalty. “It’s a matter of transparency and allowing the public — the taxpayers — who we think have a right to know what it costs to obtain the necessary materials to carry out an execution,” Albarado said. “We believe they have a right to know the vendors involved. This is one of the state’s gravest and highest responsibilities — the taking of a human life — and we think the public deserves to have the information about how the state carries out this very important public function.”

Albarado argued that making disclosure of the drug information a felony was excessive and a clear violation of the First Amendment right of free speech, and said that the bill would open the door to the state using new methods or chemicals to carry out executions without public knowledge.

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Hester said that the bill made disclosure a felony in order to “give it teeth.” Otherwise, the state’s “supply chain” (what we might otherwise call a black market) would be interrupted, and the state would not be able to nefariously acquire drugs that manufacturers explicitly prohibit suppliers from selling for executions in their contracts.

Stuttgart attorney Furonda Brasfield, testifying against the bill, recounted the legal actions taken by drug manufacturers in response to the state’s illicit acquisition of its products, and some of the fraudulent practices the state allegedly used to acquire the drugs used in the state’s flurry of four executions in eight days, “including drug deals in grocery store parking lots with drugs paid for with personal checks from a state employee.”

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Little Rock attorney Jeff Rosenzweig testified that the bill was “flagrantly unconstitutional,” arguing that the bill would prohibit a drug manufacturer from suing the state if its product was improperly used in violation of its contracts executions. Such a lawsuit would itself reveal the source of the execution drug, a felony under Hester’s bill — “a flagrant violation of the First Amendment’s right to petition the government for a redress of grievances.”

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.

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