The state’s highest court on Monday gave no clear indication whether it will decide the constitutionality of a new Georgia law that keeps secret that identities makers and suppliers of Georgia’s lethal-injection drugs.
But a number of the court’s justices expressed concern that the law’s secrecy may prevent a condemned inmate from determining if he faced an execution that could subject him to cruel and unusual punishment.
“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 the arguments.
The case involves an appeal by the state from an order issued last July by Fulton Superior Court Judge Gail Tusan, who found the law was likely unconstitutional. In her ruling, Tusan halted the execution of Warren Hill so she could more closely examine the secrecy law. The Supreme Court’s ruling, expected in the coming months, will decide whether Tusan gets to conduct that review.
Hill sits on death row for killing a fellow inmate at a state prison in 1990. At the time, Hill was serving a life sentence for the murder of his former girlfriend.
During Monday’s arguments, some justices indicated they could simply decide whether Tusan had the authority to issue the ruling she did, without addressing the constitutionality of the law.
State attorneys have argued the secrecy law is necessary because businesses that make and supply execution drugs will be unwilling to do so if their names are disclosed because they will be harassed by opponents of capital punishment. Hill’s lawyers say the law is so restrictive there is no way a condemned inmate would know if the drugs to be used for an execution could cause impermissible suffering and harm.
Justice Harris Hines wondered if the problem could be resolved if the state could provide a sample of the pentobarbital to be used in Hill’s execution to his legal team beforehand so it could be tested.
State attorney Sabrina Graham responded that testing the drug would never be enough for lawyers representing condemned inmates. “Where does it end?” she asked.
Graham said the 5,000-milligram dose of pentobarbital to be used for a Georgia execution is considered to be 25 to 40 times greater than what’s considered a lethal amount. “We’re talking about putting them under and they’re not going to wake up,” she said.
Sachin Varghese, one of Hill’s attorneys, said if the state provided a sample of the pentobarbital and tests showed the drug had no problems, “it would certainly get us much further in saying there is no issue.”
Justice David Nahmias wondered how Hill could overcome a U.S. Supreme Court ruling in 2008 that upheld Kentucky’s method of execution by lethal injection. In that decision, the high court said a condemned inmate must show that a state’s execution method “creates a demonstrated risk of severe pain” and that there are readily available alternatives that would “significantly” reduce that risk.
If the state is getting its supply of pentobarbital from a licensed compounding pharmacy, how can Hill show there is such a risk? Nahmias asked. As for compounding pharmacies, he added, “We let them prescibe drugs for everybody in this room.”
Hill’s attorney Varghese said he would assume state officials will act properly.
But because of the secrecy law, “The truth is we don’t know,” he said. “ … The Legislature may not prohibit the judiciary access to information necessary to prove a cruel and unusual punishment challenge to the means of execution.”
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