Mixed Rulings in Arkansas and Arizona Highlight Issue of Lethal-Injection Secrecy

Recent court rul­ings in Arkansas and Arizona reach­ing oppo­site out­comes high­light the con­tin­u­ing con­tro­ver­sy over state prac­tices keep­ing infor­ma­tion relat­ing to state acqui­si­tion of drugs for use in exe­cut­ing pris­on­ers secret from the public. 

A state tri­al court judge in Pulaski County, Arkansas ruled on September 19, 2017 that the Arkansas Department of Correction must dis­close pack­age inserts from the sup­plies of the seda­tive mida­zo­lam recent­ly pur­chased by the state as part of its three-drug exe­cu­tion pro­to­col. On September 21, a fed­er­al dis­trict court judge in Arizona denied a First Amendment chal­lenge brought by a coali­tion of news orga­ni­za­tions seek­ing dis­clo­sure of who sup­plies exe­cu­tion drugs to the state. 

In the Arkansas case, cir­cuit court judge Judge Mackie Pierce reject­ed argu­ments by lawyers for the state that the pack­et inserts were shield­ed from dis­clo­sure under state law because dis­clo­sure of the inserts would ulti­mate­ly result in the dis­cov­ery of who sup­plied exe­cu­tion drugs to the state. The Arkansas rul­ing was the sec­ond time a state tri­al court had ordered the Arkansas Department of Correction to dis­close pack­ag­ing infor­ma­tion about its exe­cu­tion drugs under the state’s Freedom of Information Act and pub­lic-dis­clo­sure require­ments in the Arkansas Method of Execution Act. 

In April, anoth­er Arkansas judge direct­ed the state to dis­close pack­ag­ing infor­ma­tion relat­ed to its sup­ply of potas­si­um chlo­ride, the third drug in the exe­cu­tion pro­to­col, which caus­es the pris­on­ers sear­ing pain before it stops the heart unless the pris­on­er has been ade­quate­ly anes­thetized. Also in April, the drug dis­trib­u­tor, McKesson Medical-Surgical, Inc., sued the state in an attempt to pre­vent it from car­ry­ing out exe­cu­tions with sup­plies of the par­a­lyt­ic drug, ver­curo­ni­um bro­mide, obtained from the com­pa­ny under what McKesson described as false pretenses. 

Assistant Attorney General Jennifer Merritt had told Judge Pierce that it was nec­es­sary to keep the pack­age labels secret because some drug man­u­fac­tur­ers had object­ed to the state’s use of their drugs in executions. 

In his rul­ing, Judge Pierce said the Arkansas leg­is­la­ture knew how to grant phar­ma­ceu­ti­cal com­pa­nies secre­cy under the state’s exe­cu­tion law, but didn’t do so. ​“They know what man­u­fac­tur­ers are. They knew what the issues were,” he said. The state has appealed the April order and is seek­ing an emer­gency stay to block imple­men­ta­tion of the current order. 

In the Arizona case, a group of local and nation­al news orga­ni­za­tions, includ­ing The Arizona Republic, Guardian News & Media, Arizona Daily Star, The Associated Press, and two local tele­vi­sion sta­tions had sought dis­clo­sure of the state’s drug sup­pli­ers, argu­ing that such dis­clo­sure was essen­tial for the integri­ty of the crim­i­nal jus­tice sys­tem and to deter­mine whether the death penal­ty was being car­ried out humanely. 

District court judge Grant Murray Snow wrote that while the First Amendment pro­tects speech about the death penal­ty, it does not require Arizona to dis­close ​“pro­tect­ed infor­ma­tion” about the iden­ti­ty of its drug sup­pli­er, ​“to the detri­ment of the state’s abil­i­ty to car­ry out its con­sti­tu­tion­al, law­ful­ly imposed criminal punishments.” 

Last December, Judge Snow had ruled in favor of the media on a sep­a­rate secre­cy issue, requir­ing the Arizona Department of Corrections to per­mit media wit­ness­es to see the entire exe­cu­tion, includ­ing each time drugs are admin­is­tered. Media wit­ness­es had been unable to see key por­tions of the botched exe­cu­tion of Joseph Rudolph Wood in 2014, when he was admin­is­tered 15 dos­es of lethal-injec­tion drugs in an exe­cu­tion that took near­ly two hours to com­plete. Arizona has not car­ried out an exe­cu­tion since then and no exe­cu­tions are currently scheduled.