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Georgia’s Execution Drug Secrecy Law Found Constitutional

Georgia’s Execution Drug Secrecy Law Found Constitutional

by David Reutter

In a 5-2 ruling, the Georgia Supreme Court held on May 19, 2014 that it is not unconstitutional for the state to keep secret the names and other identifying information of persons and entities involved in executions, including those who manufacture lethal injection drugs.

As previously reported in PLN, Georgia amended a state statute effective July 1, 2013 to make “identifying information” concerning those who participate in executions and the procurement of execution drugs a “confidential state secret.” [See: PLN, Feb. 2014, p.37].

Death row prisoner Warren Lee Hill was subject to an execution order issued July 3, 2013 that set his execution for the week of July 13-20. He filed suit in Fulton County superior court seeking “[s]ealed discovery of the identity of the compounding pharmacy and the supply chain and manufacture(s) of any and all ingredients used to produce the lethal drug compound” to be used in his execution.

The superior court granted Hill relief that amounted to a stay of execution, and the Georgia Supreme Court accepted review. The Court initially dealt with the issue of mootness. The drugs obtained for Hill’s execution had since expired but the state could obtain new drugs, which would then expire before a court could review the issue. Thus, this case presented “a classic example of a matter that is capable of repetition yet evading review” and was not subject to the mootness doctrine.

The state Supreme Court then held that the Fulton County superior court was the correct jurisdiction for this type of challenge because it dealt with state officers in their home jurisdiction and their carrying out of Hill’s sentence rather than collateral issues pertaining to the judgment or sentence in his case.

Next, the Court addressed the issue of discovery. In cases that present a strong Eighth Amendment claim where “[m]ore detailed information about the manufacturing of the drug [is] the essential missing link in his or her proof of that claim,” a sample of the execution drug could be provided to supply the missing link, rather than information concerning the source of the drug.

Finally, the Court found constitutional the statute making the identity of the lethal drug manufacturer – a compounding pharmacy in this case – a state secret. It noted that Hill’s claims dealt with mostly hypothetical issues, such as the drug’s sterility and other impurities that could result in death or other harmful effects, which was “a meaningless issue” in the context of an execution.

As to Hill’s First Amendment claim, the Supreme Court pointed to a “longstanding tradition of concealing the identities of those who carry out executions.” Additionally, without such confidentiality, “there is a significant risk that persons and entities necessary to the executions would become unwilling to participate.”

The superior court’s judgment was reversed and its injunction dissolved. Hill remains on death row. See: Owens v. Hill, 295 Ga. 302, 758 S.E.2d 794 (Ga. 2014), cert. denied.


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Related legal case

Owens v. Hill,