The Georgia Supreme Court is deliberating whether a condemned person’s right to information about the drugs that will be used to kill him outweighs the state’s need for a secure supply of lethal-injection drugs
“For something as critical as life itself, the state is just saying, ‘Trust us, we’ll do the right thing,’” Justice Robert Benham said during oral arguments in February.
The state is appealing an order issued last July by a Fulton Superior Court judge who found the law unconstitutional. During the high court hearing, state attorney Sabrina Graham noted that the state will use a lethal drug at a much higher strength than is needed to bring about death.
“We’re talking about putting them under and they’re not going to wake up,” Graham said.
A botched execution in Oklahoma is raising questions about a new Georgia law that shrouds the state’s lethal-injection process in secrecy.
On Tuesday, condemned Oklahoma killer Clayton Derrell Lockett writhed, gasped and struggled to lift his head after he had been declared unconscious on the lethal-injection gurney, witnesses said. Prison officials then dropped the blinds in front of witnesses and turned off the microphone in the death chamber, where Lockett later died of a massive heart attack.
Like Georgia, Oklahoma shields the identities of those who make the lethal drugs supplied to prison officials. The Georgia Supreme Court is now considering a challenge to the constitutionality of Georgia’s secrecy law, passed during the 2013 General Assembly.
Stephen Bright, senior counsel for the Southern Center for Human Rights in Atlanta, said Georgia’s justices should take note of what happened Tuesday night in Oklahoma.
“When it became clear that something was terribly wrong, they pulled the curtain so the witnesses could not see what was happening,” Bright said. “This was symbolic of what is happening with regard to lethal injections in Oklahoma, Georgia and other states — trying to keep everything secret. This shows there is an urgent, compelling need for transparency as to how states are carrying out lethal injections.”
The Constitution forbids punishments that are “cruel and unusual.” Death penalty opponents argue that, with so much secrecy attending the process, it’s impossible to know whether a punishment will prove to be cruel or unusual.
Attorneys for the Georgia attorney general’s office have argued that secrecy is necessary because businesses that make and supply execution drugs would be unwilling to do so if their names were made public. They say they would then be targeted for harassment by opponents of capital punishment. State attorneys are asking the state high court to overturn a ruling by Fulton County Superior Court Judge Gail Tusan, who found the secrecy law unconstitutional.
State attorneys have said the 5,000-milligram dose of pentobarbital to be used for a Georgia execution is 25 to 40 times greater than what’s considered to be a lethal amount. But because so many pharmaceutical companies are unwilling to provide drugs for executions, Georgia has joined other states and turned to compounding pharmacies to get its supply of pentobarbital, court records show.
The state Department of Corrections does not currently have lethal injection drugs in supply, but the agency is confident it will be able to obtain the drug when the next execution order is entered, spokeswoman Gwendolyn Hogan said Wednesday.
Any drugs to be used in the lethal-injection process will be obtained by “an appropriately regulated and licensed source,” she said. If drugs are obtained from a compounding pharmacy, they will be tested in advance to ensure that they have the appropriate concentrations and are not contaminated, she said.
Hogan added, “The department is confident in its ability to carry out future court-ordered executions in a professional manner.”
On Tuesday, Oklahoma prison officials first injected Lockett with the sedative midazolam, which was supposed to render him unconscious. This was to be followed by injections of the paralytic vecuromium bromide and potassium chloride, which causes cardiac arrest.
Ten minutes after the sedative was administered, a doctor said Lockett was unconscious and began administering the next two drugs. But over the next three minutes, before the execution was shielded from view, Lockett grimaced, tensed his body several times and, at one point, uttered “man,” the Daily Oklahoman reported.
Lockett, 38, was sentenced to death for shooting Stephanie Neiman, 19, and watching two accomplices bury her alive in 1999. He was pronounced dead almost 45 minutes after the start of his execution.
Oklahoma prison spokesman Jerry Massie said that one of Lockett’s veins “blew up or exploded, it collapsed, and the drugs were not getting into the system like they were supposed to.” The state had planned to carry out a second execution Tuesday night but postponed it after what happened with Lockett’s lethal injection.
Also Wednesday, White House press secretary Jay Carney weighed in on the debacle.
“We have a fundamental standard in this country that even when the death penalty is justified, it must be carried out humanely,” Carney said. “And I think everyone would recognize that this case fell short of that standard.”
In recent years, numerous states have passed laws shielding information about lethal-injection procedures and drug suppliers. Georgia’s law makes such information a “state secret.”
“Because of these secrecy laws, it could be impossible to find out what happened during a botched execution,” said Megan McCracken, an attorney with the University of California-Berkeley death penalty clinic. “That is a predictable consequence of the climate of secrecy.”
As for Lockett’s difficult death, she said, “Hopefully it will inspire departments of corrections and the courts to take a closer look at the procedures used in lethal injections to ensure that executions are carried out in the safe and humane way they are intended to happen.”
On Wednesday, Oklahoma Gov. Mary Fallin ordered an independent investigation of Lockett’s execution to be led by the state’s public safety commissioner. The probe also will employ an independent pathologist, she said.
“I believe the death penalty is an appropriate response and punishment to those who commit heinous crime against their fellow men and women,” Fallin said at a news conference. “However, I also believe the state needs to be certain of its protocols and its procedures for executions and that they work.”
No executions will be carried out until the review is completed, the governor said.
There have been numerous challenges to the new secrecy laws passed by states with capital punishment.
In January, judges on the Eighth U.S. Circuit Court of Appeals overturned a lower-court decision granting lawyers access to information about a new lethal-injection procedure in Missouri that uses drugs from a compounding pharmacy. The appeals court dismissed a condemned inmate’s claims, saying he did not present “a feasible and more humane alternative method of execution” or show that the new procedure carried a “risk of severe pain.”
A month later, the full Eighth Circuit court declined to reconsider the panel’s ruling, producing a sharply worded dissent from Judge Kermit Bye.
“One must wonder at the skills of the compounding pharmacist,” Bye wrote. “In fact, from the absolute dearth of information Missouri has disclosed to this court, the ‘pharmacy’ on which Missouri relies could be nothing more than a high school chemistry class.”
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