Recent court deci­sions in cas­es from Georgia and Arkansas reflect con­tin­u­ing judi­cial uncer­tain­ty regard­ing lethal injec­tion secre­cy. On October 12, an Arkansas tri­al court over­turned the state’s exe­cu­tion secre­cy law and ordered the state Department of Corrections to dis­close the drugs that it intends to use in exe­cu­tions and the source of those drugs. In a December 3 opin­ion requir­ing dis­clo­sure by the fol­low­ing day, Pulaski County Circuit Court Judge Wendell Griffen wrote, ​“It is com­mon knowl­edge that cap­i­tal pun­ish­ment is not uni­ver­sal­ly pop­u­lar. That real­i­ty is not a legit­i­mate rea­son to shield the enti­ties that man­u­fac­ture, sup­ply, dis­trib­ute, and sell lethal injec­tion drugs from pub­lic knowl­edge.” The next day, the state Supreme Court tem­porar­i­ly stayed Griffen’s rul­ing, ask­ing both sides to sub­mit addi­tion­al writ­ten argu­ments. On December 9, the U.S. Court of Appeals for the 11th Circuit issued a divid­ed rul­ing in the case of Brian Terrell, deny­ing him a stay of exe­cu­tion but express­ing deep con­cern about exe­cu­tion secre­cy. Judges Beverly Martin and Adalberto Jordan said they believed that Georgia’s secre­cy law cre­at­ed con­sti­tu­tion­al prob­lems and that the appeals court’s ear­li­er rejec­tion of a chal­lenge to secre­cy pro­vi­sions had been wrong­ly decid­ed. However, they said they were bound by prece­dent and there­fore could not stay Terrell’s exe­cu­tion. Judge Martin said, ​“Of course, I rec­og­nize the state’s need to obtain a reli­able source for its lethal injec­tion drugs. But there must be a way for Georgia to do this job with­out depriv­ing Mr. Terrell and oth­er con­demned pris­on­ers of any abil­i­ty to sub­ject the state’s method of exe­cu­tion to mean­ing­ful adver­sar­i­al test­ing before they are put to death…Indeed, we have no reli­able evi­dence by which to inde­pen­dent­ly eval­u­ate the safe­ty and effi­ca­cy of the state of Georgia’s secret drugs. For me, this rais­es seri­ous due process con­cerns.” Judge Jordan wrote, ​“Georgia can cer­tain­ly choose, as a mat­ter of state law, to keep much of its exe­cu­tion pro­to­col secret, but it can­not hide behind that veil of secre­cy once some­thing has gone demon­stra­bly wrong with the com­pound­ed pen­to­bar­bi­tal it has procured.”

Previously, in the case of Clayton Lockett, an Oklahoma tri­al court had over­turned that state’s secre­cy law. The Oklahoma Supreme Court ini­tial­ly affirmed that rul­ing, but reversed its course after leg­is­la­tors had threat­ened them with impeach­ment. The Oklahoma Department of Corrections sub­se­quent­ly vio­lat­ed the exe­cu­tion pro­to­col, botch­ing Lockett’s exe­cu­tion and exe­cut­ing Charles Warner with an unau­tho­rized chem­i­cal. The Warner breach of pro­to­col was not revealed until the state came with­in hours of repeat­ing the vio­la­tion in its abort­ed attempt to exe­cute Richard Glossip. Oklahoma exe­cu­tions are sus­pend­ed pend­ing an inves­ti­ga­tion into the violations.

(C. Lauer, ​“Judge orders Arkansas to dis­close source of exe­cu­tion drugs,” Associated Press, October 12, 2015; C. Lauer, ​“ORDER FOR ARKANSAS TO RELEASE EXECUTION DRUGS SOURCE ON HOLD,” Associated Press, December 4, 2015; B. Rankin, ​“Lethal injec­tion secre­cy rat­tles appel­late court,” Atlanta Journal-Constitution, December 9, 2015.) See Lethal Injection.

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