Disclosing source of Miss. execution drugs debated
Attorney argued that the information must be disclosed under Public Records Act since taxpayer money is used to buy the drugs
By Emily Wagster Pettus
JACKSON, Miss. — Pharmacists who sell execution drugs to the Mississippi prison system would face protests or other pressure if their names were released to the public, a state attorney told the state Supreme Court Tuesday.
An attorney representing a group that opposes the death penalty said, though, that the information must be disclosed under the state Public Records Act, in part because taxpayer money is used to buy the drugs.
Death penalty opponents in other states have made similar arguments about the secrecy of execution drugs, with mixed success. So far, the U.S. Supreme Court has declined to weigh in. States are struggling to obtain execution drugs since European pharmaceutical companies began blocking the use of their products for lethal injections.
Special assistant attorney general Paul Barnes told Mississippi justices that suppliers of execution drugs are unwilling to do business with the state Department of Corrections "unless we can protect their identities."
Jim Craig, an attorney for the New Orleans-based Roderick and Solange MacArthur Justice Center, which opposes the death penalty, filed a public records request in November 2014 about Mississippi's execution drug supplier.
"We're talking about taxpayer dollars being given to a public agency to buy goods and services," Craig said.
A chancery court judge ruled for disclosure as a public record in March, but the information remained secret while the state appealed the decision.
Barnes said executions are on hold in Mississippi because the state does not currently have the three drugs it uses for lethal injections: pentobarbital, which is a sedative; vecuronium bromide, which paralyzes muscles; and potassium chloride, which stops the heart.
He said the state had a limited supply of the drugs when the litigation began last year, and they have all expired.
In briefs filed before the oral arguments, Barnes wrote that Mississippi has been unable to obtain pentobarbital from any source since the MacArthur Justice Center "outed" the name of a previous supplier, a compounding pharmacy in Grenada, Mississippi.
"The cause and effect relationship of these events cannot reasonably be questioned," Barnes wrote.
Justices asked several questions about the MacArthur Justice Center's argument that the case is a public records fight.
"Your argument today would be no different if you were a newspaper?" Justice Jess Dickinson asked.
Craig responded: "That's absolutely correct, your honor."
Justices gave no indication of when they will rule.
In April, the MacArthur Justice Center and three death row inmates filed a federal lawsuit against the Mississippi Department of Corrections, challenging the drugs used in executions. Craig argues in the federal lawsuit, which is still pending, that inmates being executed could suffer "unnecessary and excruciating pain" from compounded pentobarbital.
Robert Dunham, executive director of the Washington-based Death Penalty Information Center, said in a phone interview Tuesday that some states try to maintain secrecy about the supplier of drugs so the companies won't face public criticism. He said other states try to maintain secrecy because they don't want suppliers to know that certain drugs bought from them are being used in executions.
"Virtually every time a court has enforced transparency by upholding a state's claim of entitlement to secrecy, something bad comes out," Dunham said.