The Arkansas Supreme Court on Thursday ruled that the state does not have to disclose its execution drug supplier, a ruling that could pave the way for the state to carry out its first execution in more than a decade.
The decision in favor of the department of corrections reverses a lower court ruling that the state had to disclose its execution drug supplier.
In 2013, the state signed a contract with death row inmates, agreeing to disclose information about the origin of execution drugs. Just two years later, however, the legislature changed the law, making that information confidential.
The inmates sued, saying the new law didn't invalidate their agreement and a lower court agreed.
But on Thursday, the Arkansas Supreme Court ruled that the information is irrelevant.
"Here, the provenance of the drugs is not in question. ADC [Arkansas Department of Corrections] voluntarily submitted the drugs it had obtained to an independent laboratory for testing. The test results confirmed that the contents of the vials match the FDA-approved labeling and revealed that all three drugs meet applicable potency requirements," Justice Courtney Goodsen wrote for the majority.
"In light of this evidence, identifying the supplier of the drugs serves no useful purpose in establishing the Prisoners' claim... Given the practical realities of the situation, as borne out by this record, the circuit court erred in ruling that public access to the identity of the supplier of the three drugs ADC has obtained would positively enhance the functioning of executions in Arkansas. As has been well documented, disclosing the information is actually detrimental to the process."
States have tried hard in recent years to keep the supplier of their execution drugs hidden, claiming that suppliers are only willing to sell the drugs if the public and their business partners won't find out.
As drug makers have taken measures to keep their products out of the hands of executioners, states have sometimes turned to less than reputable sources. Just a few years ago, Arkansas had to surrender its execution drug to the Drug Enforcement Administration after obtaining it from an overseas source. And a recent grand jury investigation into botched execution attempts in Oklahoma placed much of the blame on execution secrecy.
But the high court ruled that Arkansas is not still bound to follow the settlement agreement from years ago.
"The settlement agreement cannot be read as expressing an intention to create a continuing obligation on the part of ADC to make similar disclosures based on" future execution procedures, the court ruled.
The Arkansas Constitution also requires the state be public about how it spends taxpayer money. The court said the state's new secrecy law doesn't violate the constitution.
"In adopting this legislation, it did not completely shield the identity of the
supplier from disclosure. Instead, the General Assembly determined that any disclosure is to be made by the ADC in litigation on the condition that it apply for a protective order."
The ruling was criticized heavily in a dissent by Justice Robin Wynne.
"Far from merely indicating principles, the provision clearly states exactly what information is to be given to the public. One thing that the General Assembly may not do is decide whether to make the information public," she wrote.
"Essentially, the majority is saying that a requirement for certain information to be publicly declared is satisfied if a state agency first gets an order prohibiting the information from being made public. That makes absolutely no sense whatsoever. Portions of [the secrecy act] clearly violate... the Arkansas Constitution."
The inmates also challenged the state's three-drug protocol. In this method, the state injects the inmates with a sedative, followed by a paralytic, and then a third drug that kills and can be painful if the inmate isn't properly sedated. The method was upheld in a U.S. Supreme Court ruling from last year, in which the court said inmates would have to propose a better method for them to be killed.
Arkansas inmates proposed several other drug protocols, and also suggested a firing squad. The state supreme court said however, that they had not proven that the drugs were available to the state for use in executions, and that the firing squad was not readily available since the legislature would have to change the law to allow it.
Chris McDaniel is an investigative reporter for BuzzFeed News and is based in New York. His secure PGP fingerprint is C90B B2EF E872 EF22 4EDA DABB 50E6 F2BE 1164 FCAF
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