State must reveal execution drug makers by Friday, Judge Griffen rules (Updated)

The Department of Correction must produce the names of the manufacturers of drugs used in executions by noon Friday after Pulaski County Circuit Judge Wendell Griffen ruled Thursday (Dec. 3) that the law shielding their names is unconstitutional.

UPDATE: On Friday (Dec. 4) the Arkansas Supreme Court approved a request from Arkansas officials to place a temporary hold on the mandate to provide information about the drug manufacturers.

Nine inmates, eight of whom have exhausted their appeals and had execution dates set, sued claiming as unconstitutional Act 1096 of 2015, which shields the state from revealing information that could identify execution drugs’ manufacturers and sellers. The law was passed because the vendors’ reluctance to being identified with the death penalty has made procuring the drugs difficult.

Griffen in October had ordered the executions halted through a temporary restraining order and ruled that the Department of Correction must identify the manufacturer, seller, distributor and supplier of all lethal injection drugs. Both sides had sought summary judgments in their favor.

Griffen wrote Thursday that Act 1096 violates the Arkansas Constitution’s ban on cruel and unusual punishment because of the possibility that the sedative midazolam will not adequately induce anesthesia. He wrote that “persons threatened with deprivation of constitutional rights … are entitled to a meaningful opportunity to challenge the governmental action that threatens them.”

Griffen rejected an argument by the Department of Correction that the plaintiffs have no right to documents identifying execution drug suppliers, saying that such information has been available to the public for years under the Freedom of Information Act. He pointed to Oklahoma’s botched execution of Clayton Lockett, where the state used the wrong drug in its protocol, as a reason for public identification. Death row inmates in other states have suffered pain, he wrote.

He noted that Arkansas law requires the humane killing of animals.

“The Court rejects the notion that domestic pets and livestock in Arkansas have the right to die free of unjustifiable and prolonged pain, but that the constitutional guarantee against ‘cruel and unusual punishment’ found in the Arkansas Constitution allows people who commit murders to be put to death as if they have no entitlement to such right,” he wrote.

GOV. HUTCHINSON RESPONSE
Speaking to reporter’s following his speech at the annual meeting of the Arkansas Farm Bureau, Gov. Asa Hutchinson said he plans to meet this afternoon with Attorney General Leslie Rutledge and his own legal counsel to consider Griffin’s ruling.

Hutchinson called the ruling “troubling,” saying the state legislature passed Act 1096 to assure confidentiality to suppliers in the sale of execution drugs in the state of Arkansas.

“So, a sale is accomplished based upon that law and the promise of confidentially,” Hutchinson said. “And here a judge without a ruling by the Arkansas Supreme Court on the constitutionality of the law, says ‘we’re not going to give a delay, we’re not to give a stay – you got to turn that information over and breach that confidentiality.”

The governor added there is already a stay of executions in Arkansas, so there was no immediate need to disclose the names of drug companies who supply the lethal drugs that are used in executions.

“It ought to be ruling of the Arkansas Supreme Court,” he reiterated. “It puts the state in a very difficult position, and it does not give due regard to the actions of the Legislature in providing that confidentiality.”

JUDGE: NO PROTECTION FOR VENDORS
Griffen also agreed with the inmates’ claim that the Constitution requires an accurate and detailed summary of public spending.

“Defendants are mistaken in their argument that the constitutional requirement found at Article 19, Section 12 of the Arkansas Constitution somehow authorizes the legislature to decide to conceal when public money is spent, to whom it is paid, and the purposes for those expenditures. Article 19, Section 12 is a constitutional mandate for disclosure, not a suggestion that the General Assembly may disclose this information or not do so as it desires,” he wrote.

He rejected the Department’s request for a protective order under the argument that drug suppliers would face negative publicity, saying such a protection is not found in the Arkansas Constitution.

“There is no constitutional right for a governmental vendor, including a vendor who supplies lethal injection drugs used for capital punishment, to enjoy governmental protection from criticism,” he wrote.

Griffen ruled that the law violated Article II of the Constitution banning laws impairing the obligation of contracts. On June 14, 2013, in the case Johnson v. Wilson, the Arkansas Department of Correction had agreed to provide the drug protocol for death row inmates’ counsel. Citing the U.S. Supreme Court ruling, United States Trust Co. v. New Jersey, Griffen said state laws that impair a state’s contractual obligation are legal only if a court determines it to be “reasonable and necessary to serve an important public purpose.”

The Arkansas Department of Correction and its director, Wendy Kelley, had argued they could only obtain the drugs after assuring the suppliers they would not be identified. Griffen wrote, however, that suppliers had provided the drugs before Act 1096 was enacted.

“Drug manufacturers are free to not provide pharmaceutical products for capital punishment. People opposed to capital punishment are free to object to it, and are free to withhold patronage from drug manufacturers who provide pharmaceutical drugs for capital punishment,” he wrote.

UPDATE: Late Thursday, Attorney General Leslie Rutledge filed an emergency motion for stay to allow for appeals of the lower court ruling.

“Unless this Court enters a stay immediately (or at least before Noon tomorrow), the circuit court’s December 3 disclosure order effectively will deprive the State of appellate review of the State’s sovereign immunity defense to all of the claims in this case, including all of the various claims seeking production of the lethal drug supplier information at issue,” Rutledge’s filing said.

“Stated differently, the lower court’s order will effectively give the death-row inmates an unreviewable victory on most of their claims in this case. No disclosure should be required until the disclosure-related claims are finally resolved on the merits by this Court,” the motion added.

“Attorney General Rutledge has a duty to defend the State’s lethal injection statute and disagrees with Judge Griffen’s order. The Attorney General’s office has filed a notice of appeal and intends to ask the State Supreme Court for an immediate stay as quickly as possible,” said Judd Deere, spokesman for Rutledge.