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Georgia Supreme Court rules secret source for lethal injection drugs law constitutional

Warren Lee Hill killed another inmate at the state prison in Leesburg in 1990. (File photo)

Warren Lee Hill killed another inmate at the state prison in Leesburg in 1990. (File photo)

ATLANTA — The Georgia Supreme Court has reversed a stay of execution for Warren Lee Hill, who murdered another inmate at the state prison in Leesburg in 1990. The court in a 5-2 vote rejected the arguments of Hill’s attorneys that Georgia’s refusal to disclose the source of its lethal drugs was unconstitutional.

Last July, Fulton County Superior Court Judge Gail Tusan postponed Hill’s execution to review at 2013 state law that makes the identities of those who supply or compound drugs used in Georgia executions “a confidential state secret.”

In a 33-page majority opinion being released this morning, Presiding Justice P. Harris Hines states that the high court holds that the state law is constitutional and dissolves the interlocutory injunction granted by Tusan.

“Pivotal,” the majority opinion says, “is the fact that each of Hill’s arguments ultimately centers on his claim that there is an unconstitutional risk that his execution will amount to cruel and unusual punishment.”

The court majority said Hill’s expert gave no clear indication regarding the level of risk involved. “This lack of clear testimony about the level of risk involved should, we believe, be set against the fact that the execution drug, pentobarbital in this case, is not an uncommon drug and was produced in the type of pharmacy that is responsible for filling millions of prescriptions per year in this country,” the opinion states, noting that the failure of Hill’s claims does not stem from any constitutional defect in the statute, but that “the failure of his claims stems simply from the fact that he failed to make any claims that could merit relief.”

The majority opinion states the reasons for offering privacy are “obvious, including avoiding the risk of harassment or some other form of retaliation from persons related to the prisoners or from others in the community who might disapprove of the execution as well as simply offering those willing to participate whatever comfort or peace of mind that anonymity might offer. Although the identity of the executioner who actually inflicts death upon the prisoner is the most obvious party in need of such protection, we believe that the same logic applies to the persons and entities involved in making the preparations for the actual execution, including those involved in procuring the execution drugs. Second, without the confidentiality offered to execution participants by the statute, as the record and our case law show, there is a significant risk that persons and entities necessary to the execution would become unwilling to participate.”

Overall, the majority opinion says that the justices “conclude that Georgia’s execution process is likely made more timely and orderly by the execution-participant confidentiality statute and, furthermore, that significant personal interests are also protected by it.”

Justice Robert Benham, who along with Justice Carol Hunstein dissented, recounted the 34-minute execution in Oklahoma of Clayton D. Lockett, who had a fatal heart attack.

“I write because I fear this State is on a path that, at the very least, denies Hill and other death row inmates their rights to due process and, at the very worst, leads to the macabre results that occurred in Oklahoma,” Benham wrote. “There must be certainty in the administration of the death penalty.”

Because of the scarcity of lethal drugs available, Georgia does not have that certainty, the dissent opinion states.

“Georgia’s confidential inmate state secret statute does nothing to achieve a high level of certainty. Rather the law has the effect of creating the very secret star chamber-like proceedings in which this State has promised its citizens it would not engage….The fact that some drug providers may be subject to harassment and/or public ridicule and the fact that authorities may find it more difficult to obtain drugs for use in executions are insufficient reasons to forgo constitutional processes in favor of secrecy, especially when the state is carrying out the ultimate punishment.” And assurances from the State that the compounding pharmacy it used was able to produce a high quality execution drug “amount to little more than hollow invocations of ‘trust us,’” the dissent says.

The dissent says that the statute is unconstitutional because Hill’s claims are speculative because the state’s shield law denies him any opportunity to prove they are actual.