LITTLE ROCK — As Arkansas prepares to restart its death chamber several months after the state carried out its first executions in nearly 12 years, an order from the state’s highest court to release more information about lethal injection drugs could throw an obstacle in its path. At the minimum, it may raise a new round of uncomfortable questions about how the state obtains its execution drugs.
The state Supreme Court ruled last week that a 2015 law keeping secret the source of Arkansas’ execution drugs doesn’t extend to manufacturers, a decision that could force the state to release drug labels for its supply of a lethal injection drug early this week. It could undermine an approach Arkansas and at least a dozen other states have used to repel legal challenges by keeping secret how and where they obtain their drugs.
The ruling came a week before the scheduled execution of Jack Greene, a convicted murderer scheduled to die Thursday. A state judge dismissed Greene’s attempt to halt his execution on Friday, but the inmate’s attorneys said they’re appealing to the Arkansas Supreme Court. Greene was convicted for the 1991 killing of Sidney Jethro Burnett after Burnett and his wife had accused Greene of arson. Gov. Asa Hutchinson last week said he’s seen nothing in Greene’s case file so far that would prompt him to halt the killer’s execution.
If put to death, Greene will be Arkansas’ first execution since the state put four men to death over eight days in April. The state had originally planned to execute eight men over 11 days before its supply of midazolam, one of the three drugs it uses in lethal injections, expired. Four scheduled executions were halted by the courts.
The Supreme Court ruling revives a familiar issue: the secrecy surrounding the source of Arkansas’ lethal injection drugs. A 2015 state law keeps the drug source a secret, a move Arkansas officials have said is needed to ensure it can find suppliers.
“Public pressure from anti-death-penalty advocates likely would lead manufacturers to implement even more distribution controls that would, as a practical matter, make it impossible for the state to acquire the drugs in its lethal-injection protocol,” the state argued in court filings last month.
Justices, however, dismissed that argument and said doesn’t protect the drug makers.
“The evidence presented in this case demonstrated that many manufacturers of lethal injection drugs already prohibit the use of these drugs in executions and that these manufacturers often have contracts in place with their distributors that prevent the downstream sale of the drugs to prison officials,” Justice Courtney Goodson wrote in the court’s ruling last week. “It is therefore the confidentiality of the sellers and suppliers of these drugs to the (Correction Department) that the confidentiality provisions were intended to protect.”
The state had previously released photos of its execution drugs with the manufacturers’ names blacked out, but stopped doing so after The Associated Press was able to use those labels to identity the drug makers. A separate lawsuit seeking the same information about the state’s two other lethal injection drugs is also pending before the high court. Both lawsuits were filed by the same attorney, Steven Shults, who has been seeking the labels.
Hutchinson in August scheduled Greene’s execution after prison officials said they’d obtained a new supply of midazolam. The department said it paid $250 in cash for enough of the drug to conduct two executions.
Two drug makers unsuccessfully sought to prevent their drugs from being used in Arkansas’ executions in April, and a case is still pending before the state Supreme Court over a medical supply company’s claims that the state misleadingly obtained one of the drugs.
Details about the maker of the latest midazolam supply could open the door for new challenges. The ruling, which takes effect early this week, orders a lower court to determine what information other than the manufacturer must be withheld from the drug labels released.
With a narrow window until Thursday night, the biggest question remaining is how much of an impact — if any — the decision to release those labels could have on efforts to spare Greene’s life.
Andrew DeMillo has covered Arkansas government and politics for The Associated Press since 2005. Follow him on Twitter at www.twitter.com/ademillo