The death penalty in Georgia has been thrown into disarray after a court blocked the upcoming execution of Warren Hill and castigated the state for passing a new secrecy law hiding the identity of the pharmacists who have supplied the lethal injection drugs needed to kill him.
The ruling leaves the Georgia corrections department in a state of legal paralysis. Shortly before judge Gail Tusan of Fulton County superior court issued her ruling, the state prison service confirmed to the Guardian that it had successfully acquired sufficient supplies of the sedative pentobarbital to kill Hill on Friday evening.
The source is likely to have been a compounding pharmacist, most probably in another state, who improvised a stock of pentobarbital on behalf of the corrections department. But the public is not allowed to know the location or identity of the outlet because the new Georgia law renders such information a "state secret".
The law was passed as a way of by-passing a growing international boycott of the use of pharmaceuticals in executions. The boycott has cut off major supply routes inside America, across Europe and around the world, leaving states such as Georgia with dwindling or expired drug stocks.
The judge ruled that by withholding from Warren Hill crucial details about the source and nature of the drugs that were to be used to execute him, the state was causing him "irreparable harm". According to an Atlanta-based reporter Max Blau who tweeted from court, the judge added that the new law "unconstitutionally limits" the condemned man's access to legal redress as it prevented him from acquiring the information needed to mount an appeal under the Eighth Amendment ban on cruel and unusual punishment.
Before reaching her decision, Tusan was presented with expert opinion from a consultant pharmacist specialising in drug safety and efficacy. In an affidavit, Dr Larry Sasich told the court that Georgia's likely use of a compounding pharmacist to concoct pentobarbital for the Hill execution presented the prisoner with substantial risk that the drugs would not work effectively.
Sasich said that compounding pharmacies were a "substandard drug industry" that operated in a "grey market" largely exempt from the approval process and rigorous monitoring to which drug manufacturers must submit. The product from such pharmacies was liable to be unpredictable and potentially unsafe, with a level of sterility below that of federal rules.
"The potential harm associated with the use of such contaminated or sub-potent drugs is extremely high," Sasich said. He added that Georgia's new secrecy law prevented Hill and his legal team from subjecting the pentobarbital supply to testing that would ensure that it would not cause him extreme pain and suffering during the execution process.
Though the ruling from a George state court will not create a federal precedent, the legal challenge to the new law will be closely watched by other states that have gone down a similar secrecy path in an effort to circumvent the drugs boycott. Arkansas, Florida, Oklahoma, South Dakota and Tennessee have all adopted secrecy provisions that keep the identity of compounding pharmacies hidden.
Georgia, which has shown a dogged determination to have Hill executed against all odds, is now expected to appeal the court ruling. Should it succeed in overturning the block, it is possible that Hill – an intellectually disabled man – will still go to his death at 7pm on Friday night.
"The death penalty is the most serious act the government can take. It's imperative that the public has access to the full range of information so that it can know what the state is doing in its name," said Sara Totonchi of the Atlanta-based Southern Center for Human Rights.
Source: The Guardian, July 18, 2013