LITTLE ROCK, Ark. – Arkansas' intent to shield much of its execution procedure from public view took another hit Tuesday when a second judge ruled that the state's prison system must disclose labels that will identify the manufacturer of a lethal injection drug.
Pulaski County Circuit Judge Mackie Pierce told the Arkansas Department of Correction to give lawyer Steven Shults unredacted package inserts for recently acquired midazolam by Sept. 28. He said Arkansas' legislators had an opportunity to grant pharmaceutical companies secrecy in a 2015 execution law, but didn't.
"They know what manufacturers are," Pierce said. "They knew what the issues were. They left out a key word not once, but twice and maybe three times."
In April, Shults won a similar case concerning information about potassium chloride, another execution drug. The case is being appealed to the state Supreme Court, and Arkansas also plans to appeal Pierce's ruling.
"Attorney General (Leslie) Rutledge intends to seek an emergency stay of the decision from the State Supreme Court, which was granted previously in the similar matter," said Judd Deere, a spokesman for the attorney general.
As its previous midazolam supply approached its expiration date in April, Arkansas scheduled eight executions and carried out four. They were the state's first executions after a nearly 12-year delay caused, in part, by drug manufacturers saying they didn't want their life-saving products used to take inmates' lives.
Arkansas and other states in turn made many of their death penalty procedures secret, believing that firms and individuals involved in executions might be targeted by protests if their assistance was noted — and that the privacy might make some willing to help.
In court papers filed ahead of Tuesday's hearing, Shults' lawyer said Arkansas has not had trouble finding enough drugs to execute two more inmates. One execution is set for Nov. 9.
"Despite using its expiring supply of midazolam as a reason to schedule a record eight executions in eleven days in April of this year, ADC miraculously found a supplier to sell it 40 more vials for $250.00 cash," lawyer Alec Gaines wrote. "It seems evident that ADC is overplaying the difficulty involved in obtaining its supply of execution drugs."
The Associated Press used product labels in 2015 to identify which drugs Arkansas would use in executions against their makers' will. Assistant Attorney General Jennifer Merritt told Pierce on Tuesday that some of the manufacturers had objected to the state's use of their drugs and that the state hoped to stop future disclosures.
She also said the "legislative intent" was to extend secrecy to manufacturers, but that the law "could have been more artfully crafted."
Arkansas recently acquired enough of the sedative midazolam to conduct two executions, with Jack Greene set to die in seven weeks. Shults previously went to court and won access to the package inserts for potassium chloride, an execution drug that stops the inmates' hearts.
Arkansas' third execution drug is vecuronium bromide, which stops the inmates' lungs.
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