Arkansas ordered to release more info on execution drug
By ANDREW DeMILLO
Nov. 02, 2017
LITTLE ROCK, Ark. (AP) — Arkansas' highest court ordered the state Thursday to identify the manufacturer of one of the lethal injection drugs it plans to use to put an inmate to death next week, ruling the information isn't protected by the state's execution drug secrecy law.
Justices upheld part of a lower court's ruling that the state must release the drug labels and package labels for its supply of midazolam, one of three drugs it uses for lethal injections. Arkansas plans to put convicted murderer Jack Greene to death on Nov. 9. The court ruled that a 2015 law keeping the source of Arkansas' execution drugs secret was only intended to protect the identities of sellers and suppliers.
"Based on the foregoing principles, we conclude that the circuit court was correct in determining that the identity of drug manufacturers is not protected under the confidentiality provisions of (the secrecy law)," Justice Courtney Goodson wrote in the court's ruling.
Justices, however, ordered the Pulaski County judge who ordered the labels' release to determine what other information — such as the lot or batch numbers of the drugs — that could identify the supplier of the drug should be withheld. Justices said their ruling will take effect by early next week if the state doesn't ask the high court to reconsider its decision.
"We are pleased (justices) recognized manufacturers were not intended to be included by the Legislature in the exception, and we are looking forward to getting that information," said Heather Zachary, an attorney for Scott Shults, the attorney who sued for the labels.
Arkansas put four inmates to death in April, its first executions in nearly 12 years, after scheduling eight to take place before its previous supply of midazolam expired. Four of the executions planned in April were halted by the court. Arkansas Gov. Asa Hutchinson in August scheduled Greene's execution after prison officials said they had obtained a new supply of the drug.
The Associated Press has previously used the labels — with the manufacturer's name blacked out — to identify drug makers whose products would be used in executions. But the state this year began withholding the labels, saying they would identify the source of the drugs.
State officials have said that identifying the manufacturer would jeopardize the state's efforts to obtain execution drugs, since pharmaceutical companies have said they don't want their products to be used to put inmates to death. Two drug makers tried unsuccessfully to prevent their drugs from being used in April's executions.
"The Arkansas Supreme Court has correctly concluded that the lot, batch and control numbers on lethal injection drug labels should remain confidential under state law," Judd Deere, a spokesman for Attorney General Leslie Rutledge, said in an email. "While the Attorney General does not agree with other aspects of the Court's ruling, she is pleased that the Court agreed with her arguments on this point."
Two justices dissented with the release order, arguing the Legislature intended manufacturers to be excluded.
"Pharmaceutical companies exist to sell or supply drugs," Justice Shawn Womack wrote.
The ruling came as a Jefferson County judge weighed whether to halt's Greene's execution over claims he's mentally incompetent. John Williams, Greene's attorney, told Judge Jodi Dennis that she had an obligation to void an Arkansas law that lets state Department of Correction Director Wendy Kelley determine an inmate's mental competency — particularly after the nation's highest court said inmates deserve to have an neutral person look at their mental health.
"Director Kelley is not an independent adjudicator of Mr. Greene's competency," he said.
Assistant Attorney General Kathryn Henry said Greene was essentially asking Dennis for a stay of execution and that the judge didn't have the authority to grant it. Dennis said she would have a decision by Friday.
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