Death penalty case renews scrutiny of Georgia secrecy law

A Georgia law prohibiting the release of information about the drugs used to execute the state's death row inmates may be unconstitutional, a judge indicated earlier this week.

Fulton County Superior Court Judge Gail Tusan on Monday agreed to stay an execution for convicted prisoner Warren Lee Hill until Thursday when she hears arguments from Hill's attorneys that the law violated the Constitution's prohibition of cruel and unusual punishment.

But if the judge fails to strike down the law, First Amendment and media lawyers said the law's broad disclosure prohibitions could also be challenged by news organizations seeking to report on executions.

Known as the Lethal Injection Secrecy Act, the provision classifies as a “state secret” the identity of any person or company providing drugs for use in lethal injections. The law essentially hides from the public as well as the courts any information about who makes the drugs and how they are made. It also keeps secret the identity of prison staff and doctors who carry out and assist with the executions.

Similar laws exist in Arkansas, South Dakota and Tennessee, but Hill’s case marks the first time in the country that an execution has been stayed due to a state’s death penalty secrecy law.

In 2011, reports revealed that Georgia, among other states, had illicitly procured a sedative called pentobarbital from an unlicensed foreign wholesaler when domestic and foreign manufacturers stopped production due to pressure from groups against the death penalty. States were forced to postpone executions as pentobarbital became increasingly harder to find.

According to reports, the new secrecy law would allow the Georgia's Department of Corrections to bypass public scrutiny and the international boycott without revealing the suppliers or process. Scrutiny of the law intensified last week when Georgia officials confirmed that it was still searching for the necessary amount of drug required to perform the lethal injection.

First Amendment attorneys said that the law violates the media’s fundamental right to report on the death penalty system.

“There’s certainly a public interest in knowing how executions are being conducted in the state,” said Peter Canfield, an Atlanta-based media lawyer at Dow Lohnes. “This law makes it more difficult for journalists and the public to get to the bottom of what is going on.”

Andrew Cohen, a fellow at the Brennan Center for Justice who also is covering Hill's case for The Atlantic, said the law limits public scrutiny on how Georgia carries out its executions.

“The execution of someone is one of the gravest responsibilities a state can undertake,” said Cohen. "The executive branch, the Department of Corrections, prison officials, the folks that are procuring these drugs have gone to the legislature and said ‘We don’t want to have to share this information with the public.’ And that is of grave concern to anyone who cares about the First Amendment.”

Cohen said that regardless of the outcome of Thursday's hearing, media companies could bring a separate challenge to the law's constitutionality.

In Hill's request for a stay of execution, attorney Brian Kammer argued that the statute also violated the Eighth Amendment because the possible pain from using unknown drugs would constitute cruel and unusual punishment.

The stay request said that the state’s “unseemly efforts in the past to get lethal drugs” paired with the secrecy law provided no guarantee that the Department of Corrections would find and use a “safe, potent, uncontaminated drugs from a reputable source” to execute Hill.

The stay request also argued that the Secrecy Act's imposed bar on court access to information violates the Constitution's separation of powers doctrine.