Secrecy

Arkansas Supreme Court Orders Partial Disclosure of Information on State's Lethal-Injection Drugs

The Arkansas Supreme Court has ruled that the state's Freedom of Information Act requires the Arkansas Department of Corrections (ADC) to release copies of the pharmaceutical drug and packaging labels for the supply of the drug midazolam that it intends to use in upcoming executions, but that the secrecy provisions of the state's Methods of Execution Act permit the department to redact the batch and lot numbers that appear on the labels. The high court's November 2 decision reverses part of an earlier ruling by a Pulaski County Circuit Court that had directed the ADC to disclose the entire packaging labels. The appeals court ruling effectively permits the public and the pharmaceutical industry to identify the company that manufactured the midazolam that Arkansas purchased for the execution of Jack Greene on November 9, but the redaction prevents disclosure of information that could allow the public and the manufacturer to learn the identity of the company or companies that supplied and sold those drugs to the state. The identities of both the manufacturers and suppliers of the drugs used to execute prisoners have been at the center of a continuing controversy in Arkansas, as both drug manufacturers and their distributors have alleged that the state improperly obtained the drugs by misrepresenting the purposes for which they would be used or by breaching contracts between manufacturers and suppliers that prohibit the sale of medicines to state prisons for use in executions. The Arkansas Department of Corrections had argued in the litigation that the Methods of Execution Act required that materials that could reveal the identities of the drug manufacturers be kept secret because "[a]bsent such an interpretation, drug manufacturers will continue to be publicly identified in published news reports and will continue to interject themselves into litigation in an effort to halt the State’s use of their drugs for capital punishment." The state supreme court disagreed, saying that when the legislature wrote the MEA, it included specific provisions relating to manufacturers, could have included manufacturers among those identities covered by secrecy provisions, and did not do so. The court said that, instead, the legislature required the ADC to conduct executions with "drugs that are made by an FDA-approved manufacturer," and that withholding the identity of the manufacturer would make it impossible for the public to "verify whether the ADC is complying with that requirement." 

USS Cole Lawyers Resign From Guantánamo Death-Penalty Defense, Say Government Spied on Client Communications

The U.S. Supreme Court has denied review of a petition filed by lawyers on behalf of Abd al Rahim al Nashiri—accused of orchestrating al-Qaida’s October 12, 2000 suicide bombing of the USS Cole warship off the coast of Yemen—challenging the legality of his death penalty trial before a Guantánamo Bay military commission. But in what has been described as "a stunning setback" to what would have been the first death-penalty trial held before the special military tribunals established in the wake of the 9/11 attacks, the entire civilian legal team has resigned from the case amid allegations that the government was illicitly listening in on their legal meetings. The Miami Herald reported on October 13, just three days before the Supreme Court decision, that the Chief Defense Counsel for the Military Commissions Defense Organization, Brigadier General John Baker (pictured) had “found good cause” to permit Nashiri's defense team to withdraw from the case as a result of ethical concerns created by alleged government spying on privileged attorney-client meetings. In June 2017, Gen. Baker advised war court defense attorneys that he had lost confidence in the integrity of “all potential attorney-client meeting locations” at Guantánamo, saying that he was “not confident that the prohibition on improper monitoring of attorney-client meetings” at the detention center was being followed. Attorney Rick Kammen, who has defended Nashiri since 2008, alleges in the Supreme Court petition that his team discovered classified information contradicting government assurances that the facilities in which they met with Nashiri were not being improperly surveiled. In the past, the spying has included, among other things, "microphones hidden in smoke detectors." Because the information relating to the violation of the right to counsel is classified, the defense lawyers have been ordered by the judge in the case, Air Force Colonel Vance Spath, not to share the information with the public or their client. Although Brig. Gen. Baker has released Kammen from representing Nashiri, the case cannot proceed until another experienced death-penalty defender is brought onboard. Two other civilian defense attorneys who are Pentagon employees—Rosa Eliades and Mary Spears—also quit the case with permission from Baker but remain on his staff. The only member of Nashiri's defense team who remains on the case is Lieutenant Alaric Piette—a former Navy SEAL who has never tried a murder case. “I am certainly not qualified as learned [death-penalty] counsel,” Lt. Piette told the Miami Herald, which he says Nashiri “is entitled to and should have ... since the government is trying to kill him.” Kammen says the defense team is "angry about being placed in an ethically untenable position, disappointed in not being able to see the case through, and devastated to leave Mr. Nashiri, whom we genuinely like and who deserves a real chance for justice.” The pretrial proceedings at the Guantánamo Bay that were scheduled to begin on October 30th are expected to be delayed for months, until learned death-penalty counsel who has received Top Secret security clearance to review the evidence in the case is appointed.

U.N. Secretary-General, European Union Ambassador Call for Abolition of “Barbaric” Death Penalty

In separate statements issued in connection with the 15th World and European Day against the Death Penalty on October 10, United Nations Secretary-General António Guterres and European Union U.S. Ambassador David O’Sullivan have called upon all nations to halt scheduled executions and abolish the death penalty. In his first ever statement on capital punishment since becoming Secretary-General on January 1, 2017, Guterres described capital punishment as a “barbaric practice” that, he said, “has no place in the 21st century.” He said the death penalty does little to deter crimes or serve victims and asked those countries that still have the death penalty to “[p]lease stop the executions.” In an article published on the internet site Medium, Ambassador O’Sullivan—echoing the language of an October 9 Joint Declaration by the EU High Representative for Foreign Affairs and Security Policy and the Secretary General of the Council of Europe—wrote that the death penalty “is inhuman and degrading, does not have a proven deterrent effect, and allows judicial errors to become fatal.” He said the EU “care[s] about the plight of American death row inmates” because “[a]s Europeans we believe fundamentally that the death penalty is incompatible with human dignity.” Guterres’s remarks came at a U.N. event on Transparency and the Death Penalty. “Some governments conceal executions and enforce an elaborate system of secrecy to hide who is on death row, and why,” the Secretary-General said. The lack of transparency, he said, shows disrespect for human rights norms and damages the fair administration of justice. A resolution adopted by the U.N. Committee on Human Rights September 29 also emphasized that a “lack of transparency in the use of the death penalty has direct consequences for the human rights of the persons sentenced to death,” and called upon countries “that have not yet abolished the death penalty to make available relevant information,” including “information on any scheduled execution.” Execution secrecy has been an ongoing issue in recent executions across the United States, and an Oklahoma grand jury found that “paranoia” on the part of prison officials about keeping execution information secret had “caused administrators to blatantly violate their own policies.”

Arkansas, Nevada Obtain New Supplies of Drugs, Plan to Carry Out Two Questionable Executions

The states of Arkansas and Nevada have announced that they have obtained new supplies of execution drugs that will permit them to carry out two executions in what critics have called questionable circumstances. On August 4, Arkansas obtained a supply of midazolam—the controversial drug used in botched executions in at least four states—paying $250 in cash to an undisclosed supplier for 40 vials of the drug. Then, on August 17, Attorney General Leslie Rutledge asked Governor Asa Hutchinson to set an execution date for Jack Greene (pictured), described by his lawyers as “a severely mentally ill man [with] well-documented brain damage.” Also on August 17, Nevada—which does not currently have an execution protocol in place—announced that it had obtained drugs to execute Scott Dozier, using a three-drug formula that no state has ever tried before. Dozier—who has waived his appeal rights and volunteered to be executed—is scheduled to die on November 14. In a press statement, Greene’s lawyer, John C. Williams, said “[c]apital punishment should not be used on vulnerable people like the severely mentally ill.” Greene, he said, is mentally incompetent and suffers from delusions that “his spinal cord has been removed and his central nervous system has been destroyed.” Responding to this delusion, Williams said, Greene “constantly twist[s] his body and stuff[s] his ear and nose with toilet paper to cope with the pain,” often causing himself to bleed. A spokesperson for Hutchinson—who authorized Arkansas’s unprecedented attempt to execute eight prisoners over an eleven-day span in April—has indicated that the governor will set an execution date for Greene. To execute Dozier, Nevada has indicated that it will use an untried combination of diazepam (Valium), fentanyl (an opiod), and cisatracurium (a paralytic). The state has not yet announced how the drugs will be administered. All but one of the prisoners executed in Nevada since 1977 were found to have waived their appeals; Dozier would be the state's 12th death-row prisoner to volunteer to be executed. Nevada recently spent nearly $900,000 on building a new execution chamber.  

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."

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