Secrecy

Texas Appeals Court Rules State Must Disclose Identity of 2014 Execution Drug Supplier

The Texas 3rd District Court of Appeals has rejected claims made by state corrections officials that disclosure of the identity of its supplier of the execution drug pentobarbital would expose the company to a "substantial threat of physical harm." Finding these claims to be “mere speculation,” the appeals court ruled on May 25, 2017, that Texas must disclose the identity of the compounding pharmacy that supplied execution drugs to the state in 2014. The ruling upholds a Travis County District Court order in a suit that was filed on behalf of two death-row prisoners under the state's Public Information Act. The prisoners' attempt to litigate a challenge to the state's lethal injection practices failed to halt their executions, but the district court later determined that the identity of the drug supplier was "public information" subject to disclosure under the state public records law. The Texas Department of Criminal Justice (TDCJ) had argued that information concerning the identity of the compounding pharmacy that provided execution drugs fell within a safety exemption in the act, which shields release of otherwise public information where disclosure would create a "substantial threat of physical harm." The court found that TDCJ had shown nothing more than the risk of public criticism, which it said was not enough to block the supplier's identity from disclosure. The court recognized that "[t]here are myriad reasons why a private business or professional involved in the [execution] process would not want that fact known publicly—potential adverse marketplace effects, unwanted publicity, critical written or oral communications from members of the public, or protests, to name but a few of the unpleasantries that can accompany one’s association with such a controversial public issue." But under the law, the "sole permissible focus" is the "threat of physical harm from disclosure of the pharmacy’s or pharmacist’s identity—not, in themselves, any threats of harm to privacy or economic interests, threats of media or political 'firestorms,' or even threats of harm to property short of harm to persons." In 2016, a BuzzFeed News review of FBI records found that state claims that execution drug suppliers have been the subject of threats by anti-death penalty activists were largely unsubstantiated and exaggerated. Maurie Levin, one of the defense lawyers who filed the public records lawsuit, praised the court's ruling, saying: "They stuck to the law … and the law affirms that those who are involved in government actions don’t get to be anonymous and might be subject to criticism and protest." And she added, "That’s the nature of the beast. That is how our government works. I think the affirmation of those principles is really important." The decision is limited to the source of the state's execution drugs in 2014, because the state passed a broader secrecy law after the suit was filed. TDCJ has said it will appeal the ruling to the Texas Supreme Court. Texas is also suing the federal Food and Drug Administration over its seizure of execution drugs the FDA has said Texas attempted to illegally import from India. The FDA seized the drugs in October 2015, and issued a final order in April 2017 refusing to release the drugs.

State and Federal Courts Grant Stays, Preliminary Injunctions Blocking 8 Arkansas Executions

In legal challenges filed separately by Arkansas death-row prisoners and a company involved in the distribution of pharmaceuticals, the Arkansas state and federal courts issued preliminary injunctions putting on hold the state's plan to carry out an unprecedented eight executions in the span of eleven days. After a four-day evidentiary hearing that ended late in the evening on Thursday, April 13, the United States District Court for the Eastern District of Arkansas issued a preliminary injunction barring Arkansas from carrying out the eight scheduled executions with a three-drug cocktail of midazolam, vecuronium bromide, and potassium chloride. The District Court issued its opinion and order early Saturday, April 15, finding "a significant possibility” that the prisoners' challenge to the lethal injection protocol will succeed and that Arkansas' execution plan denies the prisoners meaningful access to counsel and to the courts during the course of the executions themselves. In granting the preliminary injunction, Judge Kristine G. Baker wrote, "The threat of irreparable harm to the plaintiffs is significant: If midazolam does not adequately anesthetize plaintiffs, or if their executions are ‘botched,’ they will suffer severe pain before they die." The ruling came a week after the U.S. Court of Appeals for the Sixth Circuit upheld a preliminary injunction granted by an Ohio federal district court barring that state from using midazolam in a three-drug execution process. Arkansas has appealed the decision to the U.S. Court of Appeals for the Eighth Circuit.

In another lawsuit filed in state court by McKesson, the company that distributed vecuronium bromide to the Arkansas Department of Corrections, an Arkansas circuit judge issued an order in the late afternoon on Friday, April 14, temporarily blocking the state from using the drug. McKesson had filed a complaint alleging that Arkansas misled them about the intended use of the drug and refused to return it even after being issued a refund. Arkansas appealed the court's order, but after the federal injunction was issued, McKesson asked the Arkansas Supreme Court to vacate the state-court order because it would not be necessary as long as the federal injunction is in place.

Two prisoners separately received individual stays of execution. The Arkansas Supreme Court stayed the execution of Bruce Ward, scheduled for April 17, to allow consideration of his claim that he is incompetent to be executed. A federal district court stayed the execution of Jason McGehee, scheduled for April 27, to comply with the required 30-day public comment period after the Arkansas Parole Board's 6-1 recommendation for clemency.  [UPDATE: The U.S. Court of Appeals for the 8th Circuit reversed the District Court's ruling staying the Arkansas executions based upon its use of midazolam and the U.S. Supreme Court declined to review the issue. The Arkansas Supreme Court lifted the temporary restraining order against the state's use of medicines obtained from the McKessen Corporation to carry out executions.]

Federal Appeals Court Upholds Injunction Against Ohio Execution Protocol

The U.S. Court of Appeals for the Sixth Circuit has upheld a lower federal court ruling blocking the state of Ohio from proceeding with plans to carry out executions with its new three-drug execution protocol. The decision affirmed a district court preliminary injunction that barred the state from using the drug midazolam as part of a three-drug execution process, and barred the state from using "any lethal injection method which employs either a paralytic agent...or potassium chloride." Judge Karen Moore, writing for the 2-1 majority, said, “We are bound by the district court’s factual finding that ‘use of midazolam as the first drug in a three-drug execution protocol will create ‘a substantial risk of serious harm.’” Midazolam, a sedative, has been linked to botched executions in Ohio, Oklahoma, Arizona, and Alabama. Three Ohio death-row prisoners, Gary Otte, Ronald Phillips, and Raymond Tibbets, challenged Ohio's proposed protocol, which would use midazolam, followed by a paralytic drug, followed by potassium chloride to stop the heart. In January, a U.S. Magistrate Judge conducted the most extensive evidentiary hearing to date on the constitutionality of using midazolam in executions. After hearing five days of testimony featuring expert medical witnesses and eyewitness accounts of previous midazolam executions, the court issued a preliminary injunction against Ohio's execution protocol. The Sixth Circuit upheld the district court's decision, ruling that—given the evidence presented at the hearing—the court's findings of fact regarding the risks posed by midazolam were not clearly erroneous. The appeals court also upheld the lower court's injunction against the use of any paralytic drug or potassium chloride, agreeing with the district court that Ohio was bound by its previous repeated representations that it would not use those drugs in future executions. In reliance on those representations, the death-row plaintiffs had dropped claims related to those drugs from the litigation. The Sixth Circuit wrote, "[a]llowing the State to reverse course and use pancuronium bromide and potassium chloride in executions not only would unfairly advantage the State, but also would undermine the integrity of this litigation." In a short concurring opinion, Judge Jane Stranch commented: "This dialogue about the constitutional prohibition on cruel and unusual punishment is closely intertwined with our ongoing national conversation about the American criminal justice system. Woven through both is disquiet about issues such as punishing the innocent, discrimination on the basis of race, and effective deterrence of crime. These concerns are present throughout the criminal justice processes from arrest, to trial, to sentencing, to appeals, and to the final chapter in death penalty litigation such as this." Judge Raymond Kethledge dissented from the majority opinion. Ohio Attorney General Mike DeWine's office has not yet decided whether to appeal the decision.  

Virginia Increases Execution Secrecy After Difficulty Setting IV in Last Execution

After prison personnel took more than a half hour to set the IV line during Virginia's January 18 execution of Ricky Gray, the Commonwealth's Department of Corrections has changed its execution procedures to conduct more of the execution preparations out of view of witnesses. Prior to the change, witnesses watched as the prisoner entered the execution chamber and was strapped to the gurney. A curtain was closed while staff placed intravenous lines and electrodes for a cardiac monitor, then reopened when the execution was ready to be carried out. The curtain was closed for 33 minutes during Gray's execution, raising concerns that something had gone wrong in the placement of the IV. The ACLU of Virginia said, "the length of time Gray was behind the curtain, as well as the presence of a doctor who confirmed his death using a stethoscope rather than by viewing a heart monitor as the previous protocols required, suggest something unusual happened during the process of killing him." Under the new protocol, witnesses will no longer be able to view the prisoner entering the chamber, so they will not know when the process begins. In 2015, the American Bar Association adopted an Execution Transparency Resolution calling for execution protocols to be promulgated "in an open and transparent manner" and to "require that an execution process, including the process of setting IVs, be viewable by media and other witnesses from the moment the condemned prisoner enters the execution chamber until the prisoner is declared dead or the execution is called off." In response to the Commonwealth's change in policy, the ACLU of Virginia urged Governor Terry McAuliffe to halt all pending executions and initiate a public review of the execution protocol. "It seems that, when confronted with questions and criticism over issues with the written protocols and actual practice of executing people in Virginia, the DOC and the administration’s posture is to ignore these concerns and then tighten the veil of secrecy even further to avoid uncomfortable questions in the future," the ACLU stated in a letter to the governor. The Virginia ACLU's Director of Public Policy and Communications, Bill Farrar, told WVIR-TV, "We have secrets upon secrets upon secrets with Virginia's process of executing people in this state and it needs to stop."

American Bar Association Human Rights Magazine on Capital Punishment

Human Rights Magazine, a quarterly publication by the American Bar Association, focused its first-quarter 2017 edition on capital punishment, marking the 40th anniversary of Gregg v. Georgia. Articles by nationally-renowned death penalty experts examine geographic disparities in death sentences, secrecy and lethal injection, intellectual disability, mental illness, and other critical questions in the current discourse around the death penalty. In the introduction to the magazine, Seth Miller, executive director of the Innocence Project of Florida and chair of the ABA Death Penalty Due Process Review Project, and Misty Thomas, staff director of the ABA Death Penalty Due Process Review Project, write, "Forty years after Gregg, attorneys, scholars, and advocates continue to debate whether our collective con­cerns regarding the arbitrary and discriminatory application of the death penalty have indeed been ade­quately addressed. The anniversary of this crucial decision—which marks, in effect, the “birth” of the modern death penalty—provides an essential opportunity for reflection and con­sideration of this critical question." 

Texas Sought Execution Drugs from Company Raided by India for Illegal Drug Sales

A BuzzFeed News investigation reports that Texas sought to import execution drugs from a supplier in India that the Indian Narcotics Control Bureau shut down for allegedly selling psychotropic drugs and opioids illegally to customers in the United States and Europe. A Drug Enforcement Agency report from January 2015, obtained by BuzzFeed, indicates that Texas was in contact with an Indian drug supplier, Provizer Pharma, to obtain lethal injection drugs, just weeks before Indian narcotics control agents raided Provizer Pharma for the illegal sale of generic Xanax, generic Ritalin, opiods, and other drugs. Hari Om Gandhi, a regional director with the Indian Narcotics Control Bureau, said the drugs—which Indian court documents allege were being illegally sold online—are used medically "for relieving stress ... [, but] are also used as party drugs, as it stimulates senses.” Five Provizer Pharma partners were arrested and detained for nine months for violating India’s Narcotic Drugs and Psychotropic Substances Act and the company's facility was shut down after what the Narcotics Control Bureau described as "a significant sezure" of illegal drugs. The DEA investigative report states that Texas "will be importing" 500 to 1,000 grams of sodium thiopental, which it "will be importing from the following supplier: Provizer Pharma." The Texas Department of Criminal Justice has issued a statement saying that the state has never “engaged in any transaction” with Provizer Pharma. Sodium thiopental was widely used in executions before its U.S. manufacturer halted production because it objected to the use of its medicine in executions. Shortly after the deal with Provizer Pharma fell through, Texas purchased sodium thiopental from another Indian company, Harris Pharma, but the shipment was halted by the Food and Drug Administration. Texas recently filed suit against the FDA to have the drug shipment released, but the FDA is under a federal court order to block importation of sodium thiopental. 

Texas Sues Food and Drug Administration Over Seizure of Execution Drugs

The Texas Department of Criminal Justice filed suit on January 3, 2017 against the federal Food and Drug Administration (FDA) over the FDA's continued detention of drugs Texas had attempted to import for executions. In October 2015, Texas and Arizona attempted to import sodium thiopental, an anesthetic commonly used in executions prior to 2010, from Harris Pharma, a supplier in India. The FDA halted both shipments, saying that their import violated federal law. The FDA does not comment on litigation, but has previously said that sodium thiopental has no legal uses in the United States. The agency has indicated in the past that an injunction issued by a federal district court in Washington in 2013, and which later was upheld by the United States Court of Appeals for the District of Columbia Circuit, requires it to halt importation of the drug. No U.S. manufacturer currently produces sodium thiopental, and so the drug is unavailable from domestic sources. Texas argues that the drug should be allowed to be imported under a "law enforcement exemption" to usual importation rules. In a statement about the lawsuit, Texas Attorney General Ken Paxton attacked the agency, saying "[t]here are only two reasons why the FDA would take 17 months to make a final decision on Texas’ importation of thiopental sodium: gross incompetence or willful obstruction." Texas has used an alternative drug, pentobarbital, in executions since 2012. A spokesman for the Texas Department of Criminal Justice said, "We cannot speculate on the future availability [of] drugs, so the agency continues to explore all options including the continued use of pentobarbital or alternate drugs to use in the lethal injection process."

Missouri Execution Pharmacy Calls Sale of Drugs to State 'Political Speech,' Claims First Amendment Right to Secrecy

A pharmacy that has received more than $125,000 in cash payments from Missouri for providing lethal injection drugs that the state has used in 16 executions has argued in a court filing that its identity should remain secret, claiming that selling execution drugs to the state's Department of Corrections is political speech protected by the First Amendment. The supplier's information was requested in a subpoena by Mississippi death row inmates who are challenging that state's execution protocol, and seeking information about other state practices as part of their lawsuit. The pharmacy, which is identified in court documents as "M7," filed a motion stating that its "decision to provide lethal chemicals to the Department was based on M7’s political views on the death penalty, and not based on economic reasons. ...The fact that M7’s expression of political views involves a commercial transaction does not diminish M7’s First Amendment rights." BuzzFeed News reports that Missouri paid the pharmacy $7,178.88 for two vials of pentobarbital per execution, which it describes as well above market value, amid concerns that the cash payments may have violated federal tax laws. Analyzing M7's claim, Bloomberg News columnist Noah Feldman described the pharmacy's constitutional argument as "deeply flawed." Feldman writes that "there’s an enormous difference between speaking and acting—particularly when that action is a for-profit commercial transaction with the government. ... [I]n a democracy, it’s crucially important for the government to disclose its vendors, both to avoid corruption and to promote transparency." M7 asserted in its filing that releasing its identity could subject the pharmacy to harassment and boycotts, relying on statements from a security consultant, Lawrence Cunningham, whose previous statements about the potential threats to execution drug suppliers have been exposed as unsupported or exaggerated. "The M7 situation helps demonstrate why it’s so dangerous to treat corporations as though they have fundamental constitutional rights while doing business," Feldman writes. "Those basic rights are designed to protect individuals against government power. They aren’t supposed to be used to exempt businesses from regulation or publicity whenever it’s convenient for them."

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