Monday, May 19, 2014

Georgia Supreme Court upholds controversial lethal-injection secrecy law

Posted By on Mon, May 19, 2014 at 10:27 AM

Georgia's highest court has upheld the state's controversial lethal-injection secrecy law and, in the process, delivered a major blow to death-row inmate Warren Lee Hill's effort to avoid execution.

The Georgia Supreme Court this morning ruled 5-2 to reverse a ruling that called into question a 2013 state law protecting the identity of people helping Georgia's Corrections Department obtain lethal injection drugs. According to the court's majority opinion, Hill's legal team failed to adequately address how likely the secrecy of execution drugs such as pentobarbital would lead to an inmate's cruel and unusual punishment. As a result, five justices deemed the law to be constitutional.

Last July, Fulton County Superior Court Judge Gail Tusan granted Hill an indefinite stay of execution following his lawyers' challenge to the constitutionality of the lethal-injection secrecy law that Georgia lawmakers approved during the 2013 legislative session. By not knowing the source of execution drugs, including ones that could be mixed by compounding pharmacies, his lawyers argued the inmate could be exposed to "irreparable harm" that violates his Eight Amendment rights to avoid cruel and unusual punishment.

Hill, who has an IQ of 70, was sentenced to death in 1991 for murdering fellow inmate Joseph Handspike with a nail-studded board while he slept. The 53-year-old former U.S. Navy officer was serving a prison sentence at the time for killing his then 18-year-old girlfriend Myra Wright. Over the past two years, the death-row inmate has received multiple last-minute stays of execution over concerns about his intellectual disabilities and, most recently, the sources of lethal execution drugs.

Presiding Justice P. Harris Hines says the reasons for confidentiality are "obvious, including avoiding the risk of harassment or some other form of retaliation from persons related to the prisoners or from others in the community who might disapprove of the execution as well as simply offering those willing to participate whatever comfort or peace of mind that anonymity might offer."

That level of confidentiality should not only apply to the executioner, the court says, but also to those preparing execution drugs. Without that kind of protection, compounding pharmacies and other lethal injection drug suppliers might no longer cooperate with the state. "We conclude that Georgia's execution process is likely made more timely and orderly by the execution-participant confidentiality statute and, furthermore, that significant personal interests are also protected by it," Hines notes.

In his minority opinion, Justice Robert Benham expressed serious concerns about the law. He cited what recently happened to Oklahoma inmate Clayton D. Lockett, whose botched lethal injection led to a fatal heart attack, extending the time of his death from what's supposed to be a quick procedure to an excruciating 43-minute death. Benham, along with dissenting Justice Carol Hunstein, argue that the court's dismissal of Hill's "speculative" Eight Amendment claims, while simultaneously denying him the means to prove his claim, violate his right to due process.

The dissenting judges also call for greater certainty in the way Georgia conducts executions. The lethal-injection secrecy law, Benham says, could set the state "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."

"The fact that some drug providers may be subject to harassment and/or public ridicule and the fact that authorities may find it more difficult to obtain drugs for use in executions are insufficient reasons to forgo constitutional processes in favor of secrecy, especially when the state is carrying out the ultimate punishment," says Benham. Without transparency, he adds, assurances from state officials "amount to little more than hollow invocations of 'trust us.'"

The Georgia Supreme Court's ruling marks the ninth consecutive ruling against clients of the Georgia Resource Center, an Atlanta-based legal nonprofit that represents death-row inmates. Last year, the U.S. Supreme Court declined to take up Hill's legal challenge and opted to hear Hall v. Florida, which legal observers think could determine whether prisoners with intellectual disabilities can be executed.

"Today's ruling in the case of Warren Hill, a man with mental retardation, effectively affords the state of Georgia carte blanche to alter their 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," Hill's attorney Brian Kammer said in a statement. "The dissent correctly found that this decision conflicts with basic requirements of due process."

Attorney General Sam Olens' spokeswoman Lauren Kane says they are "pleased with the ruling of the Court," but declined to comment further on the pending case. The AJC's Bill Rankin notes that the ruling will likely allow for a number of executions, which were postponed during the lethal injection secrecy law case, to move forward.

What does this mean for Hill? It's a bit unclear right now. Kammer says that his nonprofit is exploring different options. And Olens' office is staying quiet. If we learn more, we'll post an update.

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