A Georgia law that shrouds lethal-injection drugs in secrecy was upheld by the state's highest court on Monday, though two justices expressed concern the policy could lead to a "macabre" repeat of a botched Oklahoma execution.
Warren Lee Hill, who was convicted of murdering a fellow inmate with a nail-studded sink leg, argued he has a constitutional right to know which compounding pharmacy is preparing the pentobarbital that will be used to kill him.
The appeals court, in a 5-2 decision, shrugged off concern that the drugs could be tainted and cause side effects such as a precipitous drop in blood pressure or febrile seizures.
"Such a side effect obviously would be shockingly undesirable in the practice of medicine, but it is certainly not a worry in an execution," the judges wrote.
The court concluded that keeping the name of the pharmacy secret would protect the business and its workers from harassment and retaliation — and keep drug supply lines open.
"Georgia's execution process is likely made more timely and orderly by the execution-participant confidentiality statute," the court ruled.
One of the dissenting judges, however, blasted the law and said it "has the effect of creating the very secret star chamber-like proceedings in which this State has promised its citizens it would not engage."
The judge, Robert Benham, cited the April 29 execution of Clayton Lockett using drugs obtained under a similar veil of secrecy.
Lockett appeared to regain consciousness and writhe in pain mid-execution. The procedure was halted, but he died anyway, and the cause of the debacle is still under investigation.
"I fear this State is on a path that, at the very least, denies Hill and other death row inmates their rights to due process and, at the very worst, leads to the macabre results that occurred in Oklahoma," Benham wrote in his dissent.
The Lockett execution has halted lethal injections in Oklahoma and prompted the White House to order a top-level review of how states administer capital punishment.
Because some pharmaceutical companies have refused to sell their products for executions, a number of states have turned to compounding pharmacies, which are less regulated.
Prison officials are anxious to keep the pharmacy names under wraps to protect them against protests and lawsuits.
Hill's lawyer, Brian Kammer, said the ruling "effectively affords the state of Georgia carte blanche to alter its lethal injection protocol in any way it sees fit, and to conceal from the public and even the courts the identity and provenance of the chemicals it intends to use to carry out executions.
"The dissent correctly found that this decision conflicts with basic requirements of due process."
Hill previously appealed his execution without success on the grounds that he is mentally retarded, which makes inmates ineligible for the death penalty.
Georgia's attorney general's office said it was "pleased" with Monday's decision but declined further comment.
GEORGIA DEPARTMENT OF CORRECTION / EPA
Warren Lee Hill was convicted of the 1991 murder of fellow inmate Joseph Handspike.
First published May 19 2014, 11:23 AM