ATLANTA – Georgia's law that keeps secret the source of its execution drug is constitutional, the state's highest court ruled Monday, though two justices worried that confidentiality could lead to botched executions like the one in Oklahoma last month.
In a 5-to-2 decision, the Georgia Supreme Court reversed a lower court ruling that granted a stay of execution to convicted killer Warren Lee Hill. His lawyers argued they need to know where the drug comes from so they know whether they have grounds to challenge it on the basis of the constitutional protection against cruel and unusual punishment.
The source of execution drugs has become contentious in the U.S. since major drugmakers, many based in Europe, began refusing to sell their products if they were to be used in an execution. Like some other states, Georgia used a compounding pharmacy in July to get pentobarbital for Hill's planned execution. The state has declined to identify the compounding pharmacy, citing the 2013 law.
Similar laws in other states face legal challenges, including a lawsuit filed last week by The Associated Press and several other media outlets challenging Missouri's law that prohibits disclosing the name of anyone who is part of the "execution team," which the state interprets to include the drug provider.
Hill was sentenced to death for the 1990 beating death of fellow inmate Joseph Handspike. At the time, Hill was already serving a life sentence for the 1986 slaying of his girlfriend, Myra Wright, who was shot 11 times.
A lawyer for Hill, Brian Kammer, said the ruling "effectively affords the state of Georgia carte blanche to alter their lethal injection protocol in any way it sees fit, and to conceal from the public and even the courts the identity and provenance of the chemicals it intends to use to carry out executions."
Kammer said he plans to ask the high court to reconsider and will turn to the U.S. Supreme Court if that's denied.
A spokeswoman for the attorney general's office said they were pleased with the decision.
Justice P. Harris Hines wrote in the 33-page majority opinion that keeping secret the identity of entities involved can shield them from harassment. Hines said without that confidentiality, there is a significant risk that entities needed for an execution might be unwilling to participate.
The court concluded "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," the majority opinion said.
In a dissent, Justice Robert Benham cited the botched April 29 execution of Oklahoma inmate Clayton Lockett, who writhed on the gurney, gritted his teeth and moaned before dying of an apparent heart attack 43 minutes after the start of his execution. Autopsy results are pending, but Oklahoma prison officials say Lockett's vein collapsed and they believe some of the lethal drugs were absorbed into his tissue or leaked out.
"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.
Like Georgia and a number of other states, Oklahoma refuses to disclose the source of its drugs.
The dissenting opinion said the harassment and difficulty finding the drugs "are insufficient reasons to forgo constitutional processes in favor of secrecy, especially when the state is carrying out the ultimate punishment."