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AL: Corrections come under fire for refusal to release death
Mon Mar 24, 2014 14:20
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Corrections come under fire for refusal to release death penalty information
Lawyer questions prison commissioner's refusal to provide death penalty information
Mar. 22, 2014
Written by Kala Kachmar and Brian Lyman

An attorney involved in a challenge to Alabama’s execution methods said Friday that the Department of Corrections “had no basis” to use a protective order to deny Freedom of Information requests from the Montgomery Advertiser and other Alabama news outlets.

Suhana S. Han, a New York attorney representing death row inmate Thomas Arthur who is challenging the procedures, said in a statement that the 2012 order “only governs information produced in the litigation.” Representatives of the state, the statement said, “had not agreed to supply any information about the suppliers of lethal injection drugs.”

“Such information about the suppliers belongs to the state of Alabama, and the state is free to disclose that information as it sees fit,” Han said.

The Advertiser, The Anniston Star and the Associated Press filed separate freedom of information requests on the drugs being used and the protocols employed in the state’s executions. TheAdvertiser sought the information in light of questions about the drugs being used in capital punishment, reports of drug shortages, questions about the ways other states, most notably Missouri, were acquiring them, and Alabama Legislative efforts to make the identities of those involved in the manufacture of drugs used in lethal injections confidential.

In the statement Thursday, DOC commissioner Kim Thomas cited a court order in the Arthur case that requires information on the state’s death penalty produced in the trial to be kept confidential, including execution protocols; drugs used in current and past procedures and “testimony, documents or information related to prior executions of any Alabama death row inmate.” The protective order, issued Sept. 28, 2012, does not cover information about those procedures already in the public domain.

Thomas said that he was under a “legal order” to not disseminate the information.

“While the department generally considers execution related documents confidential and exempt from public disclosure under Alabama law, because of the pending litigation, I will abide by the court order and will not release any execution information,” the statement said.

In the motion for the protective order, the Department of Corrections said it had a “vital and compelling interest in protecting the confidentiality of the procedures, the identities of persons who participate in the enforcement of death sentences, and all aspects of the manner of enforcing a death sentence in the State.”

A request for comment from the Department of Corrections was not returned Friday.

The death penalty secrecy bill was approved by a Senate committee Wednesday. Supporters have said confidentiality is needed because of efforts by death penalty opponents to expose individuals involved in their manufacture. The legislation, which has already passed the House, awaits full Senate consideration. Rep. Lynn Greer, R-Rogersville, the sponsor of the legislation, said Wednesday that if the legislature did not pass the legislation this year, “we can come back (next year) and repeal this law and go back to the electric chair.”

Experts on both sides of the capital punishment debate Friday questioned the DOC’s use of a court order to deny the requests. Richard Dieter, executive director of the Death Penalty Information Center in Washington, said a judge’s past ruling on a case is not the same as a controlling law.

“A strong argument could be made that the very fact they’re considering a bill and it’s already passed the House would be an indicator that it needs changing, and that until the law is passed, (the information) could be released,” said.

ACLU of Alabama executive director Susan Watson said in a statement that “Alabamians need and deserve to know how the government is performing executions in their name.”

Similar efforts to keep the sources of lethal injection drugs secret have taken place in Texas, Ohio and Missouri amid a shortage of lethal injection drugs, particularly sedatives used in the procedure. Anti-death penalty groups in Europe have campaigned against companies that manufactured drugs used in executions. The European Union, which bans capital punishment, has forbidden exports of any drugs that could be used in executions.

Dudley Sharp, a death penalty and victims’ rights advocate based in Texas, said Friday that he believed the push for secrecy was to ensure the corrections departments have a reliable supply and discourage legal action.

“I think the states don’t want to get sued,” he said. “The states are going to make sure they have good compounding pharmacies, and that pharmacies have responsible suppliers. If they don’t have that, it’s a disaster.”

But Sharp added that he believed the issue would likely have to be settled by the U.S. Supreme Court.

“You have freedom of information,” he said. “You also have the obligation of the state to carry out the law. If advocates are making it impossible to carry out the law, the Supreme Court has to weigh one over the other.”

Hospira, the manufacturer of sodium thiopental, a sedative frequently used in execution, announced in 2011 it would no longer manufacture the drug. Alabama, like other states, switched to the use of pentobarbital in executions.

Arthur was convicted in 1982 of a murder-for-hire scheme involving Muscle Shoals businessman Troy Wicker Jr. The murder occurred while Arthur was on a work release program after being convicted of the murder of the sister of his common-law wife in 1977.

Arthur has challenged the state’s use of pentobarbital, arguing that the drug would not render him unconscious before two other drugs listed in the procedure -- pancuronium bromide, which paralyzes the muscles, and potassium chloride, which stops the heart -- are administered.

The Attorney General’s Office, representing the DOC, has argued pentobarbital would be preferable to sodium thiopental, and says that Corrections officials would not allow an execution to go forward if the inmate was still conscious.

http://www.montgomeryadvertiser.com/article/20140322/NEWS02/303220028/Corrections-come-under-fire-refusal-release-death-penalty-information

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