A new law that keeps secret the identities of those who make and supply Georgia’s lethal injection drugs may be unconstitutional, a Fulton County judge decided Thursday.
In making such a finding, Superior Court Judge Gail Tusan halted the execution of condemned killer Warren Hill, who had been scheduled to be put to death by lethal injection at 7 p.m. Friday.
The law, which took effect July 1, is likely unconstitutional because it denies death row inmates meaningful access to the courts, violates the separation of powers and is so sweeping it “forecloses” the public’s right to know how the state carries out executions, Tusan said.
The state attorney general’s office immediately appealed Tusan’s decision to the Georgia Supreme Court. For this reason, it remains possible that Hill’s execution will be carried out as planned.
If the state high court declines to overturn Tusan’s ruling, Hill’s stay of execution will remain in place until the judge issues a final ruling on the merits of his lawsuit attacking the constitutionality of the state’s new secrecy law.
Brian Kammer, one of Hill’s attorneys, said he hopes Tusan’s decision is allowed to stand.
“We are deeply relieved,” he said. “Judge Tusan rightly found that Georgia’s new lethal injection secrecy law goes too far in its extreme secrecy.”
Hill sits on death row for beating another inmate, Joseph Handspike, to death with a nail-studded board in 1990 at the state prison in Leesburg. At the time, Hill was serving a life sentence for the fatal shooting of his former girlfriend.
The initial stay of execution entered by Tusan on Monday marked the third time Hill’s execution has been put on hold.
Georgia, like other death penalty states, has found it virtually impossible to secure execution drugs from the mass manufacturers who have faced pressure from death penalty opponents and shareholders not to provide drugs for lethal injections.
This past legislative session, lawmakers passed House Bill 122, which classifies as “confidential state secrets” any “identifying information” of those who manufacture, supply, compound or prescribe the drugs used for lethal injections.
On Thursday, senior assistant state Attorney General Sabrina Graham argued the law is necessary because anti-death penalty groups have been so successful exerting pressure on drug manufacturers that Georgia turned, for the first time, to a compounding pharmacy to get the barbiturate pentobarbital for Hill’s lethal injection.
Georgia will no longer be able to carry out executions if it cannot obtain the drugs necessary to do so, she said. “We have a very real risk here of people being harassed.”
At least a dozen other states have laws that shield the identities of lethal-drug manufacturers and suppliers, and three of them — Florida, Oklahoma and South Dakota — have a law that’s almost identical to Georgia’s, Graham said.
But Kammer said only South Dakota’s law is like Georgia’s in that it shields lethal injection information even from judicial review, and Hill’s case is the first time either law has been challenged.
Tusan read her eight-page order from the bench at the conclusion of a hearing that started early Thursday morning and stretched into the afternoon.
Because of the new law, she said, neither Hill nor the general public “has sufficient information with which to measure the safety of the drug that would be used to execute (Hill), as there is insufficient information regarding how it was compounded.”
Addressing the state’s argument that the law is needed to guard those who make and supply lethal injection drugs, Tusan agreed that these entities should be free from harassment. But the law even keeps secret the qualifications of those who make and supply the drugs, she noted.
Such information, she said, “is essential to the determination of the efficacy and potency of lethal injection drugs and has no place in a statute drafted for the express purpose of keeping private citizen’s personal information safe, and a less restrictive means of furthering the government’s interest in protecting the citizens’ information is available.”
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