A federal judge in Arizona Friday ordered state officials to disclose to the lawyers of two death row inmates basic information about the compounded drug executioners plan to use later this month when they inject the men with a lethal chemical. It was the second judicial ruling in the past three months to require more transparency in capital cases--virtually the same scenario unfolded in Georgia in July in the case of Warren Lee Hill. We may be seeing a new front in the war over capital punishment--the First Amendment. Go figure.
Lawyers for Edward Schad, set to die October 9th, and Robert Jones, scheduled for execution October 23rd, "established a First Amendment right to access information regarding the manufacturer of the lethal-injection drugs, the National Drug Code of the drugs, the lot numbers of the drugs, and the expiration date of the drugs," wrote U.S. District Judge Rosalyn O. Silver. Here is the link to her ruling. Over the weekend, Arizona turned over the information to defense attorneys but likely also will appeal the ruling in advance of the executions.
This dispute is notable for a few reasons. First, Arizona and Judge Silver have been here before. In 2010, state officials refused to disclose to attorneys for death row inmate Jeffrey Landrigan where they had obtained the drug they intended to use to kill him. Defense attorneys argued (then and now) that "compounded" lethal injection drugs not subject to FDA approval may not be medical "safe" and may cause great suffering during the execution process-- beyond acceptable norms-- thus rendering the execution "cruel and unusual" punishment under the Eighth Amendment.
In the Landrigan case, acknowledging these concerns as legitimate, Judge Silver stayed the execution and ordered the state to disclose the information it had about the drug it intended to use upon the prisoner. The 9th U.S. Circuit Court of Appeals agreed. But at the last minute the United States Supreme Court, in an unsigned order and by a 5-4 vote, permitted Landrigan's execution to proceed. He was executed in October 2010 without the justices in Washington ever resolving on the merits the secrecy issues involved in his case.
The allegation that the lethal drug Arizona intended to use upon Landrigan was "suspect" was "too speculative" to stop an execution, the Supreme Court declared in 2010. But that was a challenge under the Eighth Amendment's "cruel and unusual" clause. The current case is about whether the First Amendment gives prisoners the right to access to information about lethal drugs so that they can properly evaluate whether the drugs to be used are suspect. The idea is that the First Amendment violation causes due process or Eighth Amendment violations that render an execution unconstitutional.
Friday's hearing also was significant because Arizona officials were unable to describe how the disclosure of basic information about the lethal drug to be used in an execution would harm any "legitimate penological objectives." And in their zeal to defend their secrecy, Arizona published the sworn lament of officials of a Texas corporation who were bombarded with all sorts of criticism from death penalty opponents and others when it became known that the company was providing drugs to be used to kill people. The state says these companies must be protected from this bad publicity.
The Back Story
Officials in many of America's "death penalty states" are struggling these days to find appropriate drugs to use to execute prisoners after the European manufacturers of thiopental, the drug once commonly used in lethal injections, refused a few years ago to import their product to the United States. These foreign manufacturers became far more important in capital punishment's stream of commerce in 2011 after Hospira, a company that once produced the drug domestically, stopped production of it for fear of lawsuits brought by European officials.
The dearth of thiopental forced state officials to scramble like frantic participants in some unseemly scavenger hunt. And when they searched for new drug companies to work with, they discovered how perceptions of capital punishment have changed over the past few decades: some companies that provided drugs to be used in executions were subjected to harsh public criticism. Other companies simply didn't want their products, designed to save lives or improve health, to be used to kill people.
So states began to hide from public view critical information about these new injection drugs. In Georgia, for example, state lawmakers this March passed a law pushed by prison officials making information about lethal drugs or their manufacturer a state secret-- not to be disclosed even to a judge. One of those judges promptly declared it unconstitutional on first amendment grounds (it is now on appeal). Arizona officials, meanwhile, relied upon an old law designed to protect the names of executioners.
This gruesome game of finding new drugs, often in secret, is occurring in other states as well. Ohio had to scramble around to find a replacement for its expired supply of thiopental-- state officials there changed the law to permit the acquisition of lethal drugs from compounding pharmacies, which are not subjected to FDA review. Officials in Montana are so eager to execute prisoners in the absence of thiopental that they are talking about reinstating the use of a gas chamber. In Arkansas, officials want to proceed with the anti-seizure drug phenobarbital to execute the condemned in that state.
And just last week, Texas officials finally disclosed where they were getting the drug they intend to use in future executions. "The Texas Department of Criminal Justice," wrote the AP's Michael Graczyk, "released documents showing the purchase of eight vials of the drug pentobarbital last month from a compounding pharmacy in suburban Houston." It is the states' reliance upon these pharmacies, which operate beyond federal regulatory review, that has capital lawyers and death penalty opponents concerned: As counterintuitive as it seems, drugs used to kill must be safe and not inflict "cruel" punishment.
The First Amendment
In court on Friday, Arizona officials told Judge Silver that the lawyers for Schad and Jones, the condemned, had no federal right to information about the drug to be used in their execution. The inmates, state attorney John P. Todd argued, "have not made the clear showing for the drastic, extraordinary remedy that they're seeking." But when Judge Silver asked Todd to describe the state's interest in keeping the information secret, the state lawyer acknowledged: "This is not necessarily a penological interest. ... The government has a right to not make available all governmental information to the public."
Arizona says that revealing the name of the company that provides the drug is the same as identifying the names of the executioners. The secrecy is critical, they say, because of what has just happened in Texas. There, The Arizona Republic reports, a compounding pharmacy is seeking to "withdraw from" its agreement to supply lethal drugs to Texas "because employees 'do not have the time to deal with the constant inquiries from the press, the hate mail and messages, as well as getting dragged into the state's lawsuit with the prisoners.'" Here is the link to the transcript of Friday's hearing.
So you have the concerns of corporations who don't want to be held accountable to the public for supplying lethal drugs. You have state officials who say they have legal obligations to do whatever they can to execute capital prisoners. And you have death row inmates and their lawyers who say that if the Constitution permits capital punishment, it surely requires a state to share with the condemned basic information about the means and manner in which the execution is to proceed. Even a convicted murderer has a right to know what's going to be injected into his body to kill him.
The absence of thiopental, and a more aggressive approach by anti-death penalty advocates, have created new conditions in this area of the law and those new conditions have generated new reactions both from state officials and defense attorneys. And these conditions are going to persist until compounding pharmacies are evaluated by federal regulators to ensure the safety of their products -- which doesn't seem likely -- or until the Supreme Court takes one of these cases and definitely tells us how far the First Amendment extends here over basic information about lethal drugs.
It's going to be a hectic week in Arizona as the Schad case moves forward. It is unclear whether defense attorneys, now that they have the information about the drug, have any basis to make a constitutional claim that it would be "cruel and unusual" to inject it into their client. It also is unclear whether the 9th Circuit is going to uphold Judge Silver's ruling or even whether the Supreme Court again is going to interject itself at the last minute into another Arizona execution. You can bet that there are many officials in those "death penalty states" watching closely to see what happens. 
