By Tim Lockette
The Anniston Star
MONTGOMERY, Ala. — The names of people who participate in state executions, and the names of companies that supply drugs for lethal injection, would become a state secret under a bill passed by the Alabama House of Representatives Thursday.
The bill’s sponsor, Rep. Lynn Greer, R-Rogersville, said it would protect the state’s ability to buy the ingredients of the state’s lethal injection cocktail.
“We’re having a terrible time getting the drugs,” Greer said.
The House voted 77-19 in favor of a bill, HB379, which would make the names of anyone who manufactures or administers drugs in a lethal injection execution “confidential, not subject to disclosure, and ... not admissible as evidence or discoverable in any action in any kind of court.”
Greer said the Alabama Department of Corrections asked him to file the bill to head off potential legal challenges to the state’s lethal injection process.
States have been tweaking their lethal injection cocktails since in recent years, after a European Union ban on the shipment of of death penalty drugs to the U.S began to take effect. The new drug combinations have led to court challenges from death penalty opponents, who argue that experimental or faulty drug combinations have turned lethal injection into a cruel and unusual form of punishment, which would violate the Eighth Amendment.
“The people who make the drugs are subject to lawsuits and harassment,” Greer said “It gets to the point where nobody wants to make the drug.”
Greer said the bill was also needed to protect prison employees from harassment if their identities are revealed. Critics of the bill challenged Greer to provide evidence that prison officials are actually being harassed.
Rep. Laura Hall, D-Huntsville, said people have always known that the warden of Holman Prison, where Alabama’s death row is located, was involved in executions.
“Where does it cause a problem?” she asked.
Greer said he’d heard of examples of harassment in other states.
“There are many, many groups in this country who oppose any execution,” Greer said. “And that’s their right. But they can harass.”
House members repeatedly asked Greer if the information banned in the bill is available to the public now.
“Yes, it would be public record,” Greer said.
The Department of Corrections, however, has long kept much of that information confidential as “a matter of policy,” according to one department spokesman.
The Star asked Department of Corrections spokesman Brian Corbett last month for information on the drugs used in executions and their manufacturers. Corbett acknowledged Wednesday that the state still uses the same combination of drugs — pentobarbital, pancuronium bromide and potassium chloride — that were named in a lawsuit in 2011.
The department has yet to reveal the names of drug manufacturers, or to comply with The Star’s request, made last week, for receipts for the purchase of drugs used in lethal injection.
Birmingham lawyer Richard Jaffe, who defends people accused of capital crimes, said attempts to keep the information secret “telegraph to the world that we have something to hide.”
“I find it to be rather appalling that in the era of openness and transparency, anyone would want to keep secret the poisons used to kill someone, even if they’ve been convicted of capital murder,” he said.
Greer’s bill has yet to pass the Senate, and it’s not clear whether Gov. Robert Bentley would sign it. Attempts to reach Bentley’s spokeswoman, Jennifer Ardis, for comment were not successful Thursday.
If the bill does become law, it’s not clear whether the Department of Corrections would honor public records requests made before the bill’s passage.
“You’re asking me a question about a hypothetical, and that’s something I can’t answer,” Corbett said.
Manufacturers of two of the drugs in Alabama’s cocktail — injectable pancuronium bromide and injectable potassium chloride — have reported shortages of the drugs, according to February reports in the Food and Drug Administration’s Drug Shortage Index, which is available online.
The Star called each of the manufacturers of the two drugs listed in that index — Fresenius Kabi, B. Braun Medical, Baxter and Hospira — to ask if they supplied death penalty drugs to Alabama.
Most of the companies had not responded by Thursday afternoon. The drug company Baxter, in an email, didn’t deny supplying drugs outright, but did say that “Baxter does not make vials of injectable drugs.” Instead, the email said, the company makes dilute intravenous solutions typically used in a clinical setting.
Baxter spokeswoman Deborah Spak wrote that the company sells to large distributors and group purchasing organizations that supply hospitals. Unless an organization purchased through those buyers, she wrote, that organization “would have a difficult time obtaining our products.”
Some states seeking death penalty drugs have turned to compounding pharmacies, where pharmacists can create small batches of drugs that are not available in a mass-produced form.
Greer hinted at use of a compounding pharmacy in his remarks on the House floor.
“Let’s say we had a druggist in Sylacauga, Ala., or Dothan, Ala., that agreed to work with the Department of Corrections and they compounded this drug, which you can do,” Greer said. “And they supplied it to the State of Alabama. There’s very little profit in it and it’s just not worth the harassment that they can take plus the litigation that could follow.”
Greer’s examples in Sylacauga or Dothan seem to have been purely hypothetical.
“We don’t do that,” said Jared Johnson, pharmacist and co-owner of Marble City Pharmacy, a compounding pharmacy in Sylacauga. Johnson and other pharmacists told The Star that compounding for injection takes what is known as a “sterile compounding” facility.
“We do a lot of compounding, but we don’t do that kind of compounding,” he said.
Employees at Fort Williams pharmacy, another compounding pharmacy in Sylacauga, said they don’t produce death penalty drugs either.
Dothan’s biggest compounding pharmacy gave the same answer.
“We’ve never had a request for that, and I don’t even know what they use,” said Michelle Braswell, a pharmacist at Doctors Center Pharmacy in Dothan. Braswell said Doctors Center was likely the only pharmacy in Dothan equipped to do that sort of compounding.
Employees at Wellness Pharmacy in Birmingham, Compound Pharmaceutical in Daphne, Compound Care Plus in Loxley and Huntsville Compounding Pharmacy — all listed as sterile compounding pharmacies by the Pharmacy Compounding Accreditation Board — told The Star their businesses don’t provide death penalty drugs.
One-word amendment
On the House floor, Greer introduced a single amendment to his bill, one that would change the word “including” to the word “and.” He said the amendment was requested by the Alabama Press Association, a trade group representing state newspapers.
“The press supports this bill,” Greer said on the House floor.
APA director Felicia Mason said the association dropped its objections to the bill after Greer agreed to take out a passage that would make all death penalty procedures exempt from the state’s open records law.
“We’re not opposed to the parts that make the names of the people involved in executions, or the people who supply the drugs, confidential,” Mason said.
Greer’s one-word amendment seems to have left intact wording that would make all death penalty procedures a secret. Mason said that was likely due to an error on Greer’s part, not an attempt to slip the wording back in.
“We’ll deal with it when it’s in the Senate,” she said.
Copyright 2014 The Anniston Star