A Senate committee approved a bill Wednesday that would keep those involved in the manufacture and distribution of drugs used in executions shielded from public view. However, further negotiations over the legislation remain before it emerges in the Senate.
The key question is language that, as passed the House, would prevent discovery and admission of evidence in any state court. Sponsor Lynn Greer, R-Rogersville and death penalty supporters said that without that language, those involved in the distribution of death penalty drugs would be unwilling to provide them.
Randall Hillman, the executive director of the Alabama Districts Attorneys Association, said that lawsuits and legal actions were discouraging chemical manufacturers from disclosing the process of manufacture.
“You’re not talking about a big group of people,” Hillman told the Senate Health Committee Wednesday. “You’re talking about a narrow circumstance. We don’t want to have people using false pretenses to stop a legal process. This is very narrow, and it is very complicated.”
It is not clear where Alabama’s supplies of the drugs stand. Calls to Department of Corrections Commissioner Kim Thomas and spokesman Brian Corbett were not returned Wednesday. The Montgomery Advertiser has filed a Freedom of Information Act request for information on the drugs and the death penalty procedures; The Anniston Star and the Associated Press have also filed FOIA requests on the matter.
Rich Dieter, director of the Death Penalty Information Center, a nonprofit widely viewed as opposing the death penalty, said Wednesday that most of the challenges to drug manufacturers were coming from attorneys “required to defend their clients in every possible way.” The European Union, which bans the death penalty, banned the export of drugs used in lethal injections in 2011, contributing to the shortage.
Sens. Linda Coleman, D-Birmingham and Cam Ward, R-Alabaster, both expressed reservations about granting manufacturers sweeping immunity from court action, saying it would make it impossible to bring cases of gross negligence to justice.
“If someone is on death row, and they decide to put Drano in the solution . . . I don’t want that person not to be prosecuted,” Coleman said.
Ward introduced an amendment that would allow that information to be released via a court order. Hillman said that “any crack in this thing, you might as well not pass the bill,” saying it would open litigation fronts that could stop the supply of lethal drugs. Ward, however, said he had concerns about the precedent it would set.
“I don’t want anyone to say, ‘Well, the only way I’m going to do business in your state is to get absolute immunity,’” he said.
The committee approved the bill, but both Ward and Greer said negotiations over the language — involving the district attorneys, the Department of Corrections and trial lawyers — would continue. Ward said after the meeting the bill could come to the floor of the Senate early next month.
Greer, however, said that if the bill did not pass this year, “we can come back (next year) and repeal this law and go back to the electric chair.”
Several states have reported shortages of drugs used in capital punishment. Oklahoma this week delayed the executions of two inmates by a month, citing a lack of lethal substances to carry the executions out.
Thomas Arthur, an inmate who was convicted in 1982 over a murder-for-hire scheme, has sued the state over its use of pentobarbital in executions, saying it would take too long to render him unconscious while the second, more fatal drugs — pancuronium bromide and potassium chloride — were administered. Arthur has argued that the state’s secrecy around its execution procedures makes it impossible to determine if the process constitutes cruel and unusual punishment, banned under the Eighth Amendment to the U.S. Constitution.
The case is still pending in federal court. The Attorney General’s Office has argued that the Department of Corrections would not allow an execution to go forward if the condemned individual was still conscious.
Alabama used sodium thiapentol in executions until 2011, when Hospira, the manufacturer of the drug, stopped making the drug in the United States.
Greer said he did not know of any individuals, pharmacies or companies in Alabama that were currently providing drugs for executions. In February, after pressure from attorneys for death row inmates, a compounding pharmacy in Tulsa, Okla. agreed to stop supplying the state of Missouri with pentobarbital; the state managed to obtain the drug from another source that it would not disclose, citing a similar secrecy law in place in that state.
Dieter said he was aware of the secrecy push in Alabama.
“The pushback from some judges is due process requires inmates to know how they’re killed and where the drugs came from and who put them together,” he said. “I think there’s a tension. The Legislature can certainly pass laws. The question is whether they withstand constitutional scrutiny.”
– posted by Brian Lyman