21 September 2017 :

Judge rejects Arkansas' veiling of execution drug. Pulaski County Judge Mackie Pierce ruled that Arkansas prison officials cannot withhold labeling documents about the drugs used to concoct the state's lethal injections. Judge Pierce ordered the state Department of Correction to release the materials before the end of next week unless state attorneys can get the Arkansas Supreme Court to stay his decision through an appeal. Pierce found that the tenets of the Arkansas Freedom of Information Act trump secrecy provisions of the 2015 Method of Execution Act, the law cited by prison officials to withhold the documents from the public. His ruling, in response to an open-records lawsuit, marks the second time a circuit judge has found that the Arkansas Code 5-4-617 does not shield drug manufacturers from public disclosure under state open-record laws. "The Legislature could have easily inserted that manufacturer language. We wouldn't be here if they had," Pierce said. "They left out a key word that's the crux of the issue here, not once but twice." The Legislature did describe the shielded parties in the law as "the entities and persons who compound, test, sell, or supply the drug or drugs ... medical supplies, or medical equipment for the execution process," and specifically list them as "the compounding pharmacy, testing laboratory, seller, or supplier," the judge said, citing the statute's language. The absence of "manufacturer" in the description and list cannot be considered just an oversight since lawmakers specifically addressed the role of manufacturers in the language that sets the standards for the drugs that prison officials are required to use for lethal injection, Pierce said. "The huge issue is -- they left the barn door open -- is manufacturers," he said. "They use it [the term manufacturer] throughout the statute. It's not like they were unfamiliar with it." Pulaski County Circuit Judge Wendell Griffen reached similar conclusions six months ago. That March ruling resulted in prison officials briefly making public the labeling materials for one of the execution drugs on Griffen's orders, although state lawyers told Pierce that they only gave up a redacted version of the labels, despite Griffen stating that the documents should be released uncensored. Pierce said he only read Griffen's findings after coming to his own conclusions by researching the execution law and studying the arguments of the attorneys. He said he substantially agreed with Griffen, describing his colleague's ruling as well-researched. Griffen's decision is on appeal to the Arkansas Supreme Court. Pierce gave Correction Department Director Wendy Kelley until Sept. 28 to either release the complete documents or obtain a high-court stay of his ruling. Both of the Circuit Court rulings were in response to open-records lawsuits by Steven Shults of Shults Law Firm in Little Rock, who complained that Kelley has violated the Freedom of Information Act and the public disclosure requirements of the execution law. Kelley did not attend Tuesday's hearing but has countered in court filings that she did her best to comply with the law. She also argues that there's no way to release the labeling documents in any form without giving away who the state's drug supplier is. News reporters were able to figure it out last year despite receiving the censored materials as allowed under the execution law. The current suit is about Arkansas' brand-new supply of the sedative midazolam. It's the first chemical injected and is used to prevent the inmates from feeling the effects of the killing drugs, the chloride and the paralytic vecuronium bromide. State prison authorities announced in August that they had acquired a new batch of midazolam to replace the expired supply, allowing the state to resume executions. The only execution scheduled is set for Nov. 9.