The Tennessean takes on secrecy of execution drugs

The Tennessean exposes the secrecy of execution drugs in a front-page story in today’s Sunday edition.

State lawmakers last year passed an exemption to the Tennessee Open Records Act that allows the state to keep confidential the name of its supplier of drugs for lethal injections.

With that decision, it joined other states who have marched toward similar confidentiality, driven to that secrecy because drug manufacturers have refused to supply states on moral grounds. Finding less obvious sources meant the states had to agree to keep new suppliers secret.

The secrecy of the drug source has been questioned on First Amendment grounds in at least three other states.

Defense lawyers challenged a secrecy law in Georgia and won at the trial level. The decision now rests with the Georgia Supreme Court, who heard arguments in February. Andrew Cohen with The Atlantic has written extensively about the case.

In Arizona in October, lawyers were successful with a First Amendment claim when U.S. District Judge Roslyn Silver ruled that “…the public must have reliable information about the lethal-injection drugs themselves in order to judge the propriety of the particular means used to carry out an execution.”

The First Amendment right of its citizens to have access to information about government proceedings essentially trumped the state’s reasons for confidentiality, she reasoned.

Silver ordered the state to make the source and nature of the drug public.  The executions were carried out anyway.

A constitutional challenge on First Amendment grounds was also filed by the ACLU in Missouri.

In Nashville, The Tennessean reported that Chancellor Claudia Bonnyman has ordered the state to turn over information about the drug to the death row inmates and their lawyers.

But even if the lawyers get the information — the newspaper reported that the matter is under appeal — there is no guarantee the public will be entitled to the same.

And as The Tennessean reported in this excerpt, the state thinks it has a right to keep the information protected, just as it keeps the actual executioner’s name confidential:

At a Jan. 3 hearing, Andrew Smith, representing TDOC for the Tennessee Attorney General’s Office, argued that secrecy has always gone hand in hand with executions.

“The State’s interest in keeping this information protected is well settled. It’s codified by statute. It’s centuries old,” he said, according to a transcript of the hearing. “The process of having executioners wearing hoods at executions has been around since the Middle Ages.”

The death row case is being handled in Nashville by assistant public defender Kelley Henry, who also was involved in the Arizona case. She has been fiery in her appeal for an open process, reminding us that Tennessee was caught illegally importing execution drugs and had them seized by the DEA in 2011, along with five other states. 

She told TCOG in December: “I think there are real serious questions on where they are getting drugs and what the process was that got them to this (confidentiality) statute. They get caught breaking the law so what do they do? They pass a statute so we can’t catch them breaking the law.”



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