Ga. Lethal Injection Secrecy Law Is Constitutional

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By Lance J. Rogers

Feb. 4 — A death row inmate failed to persuade a sharply divided en banc panel of the Eleventh Circuit Feb. 2 that he should be allowed to pierce Georgia's lethal injection secrecy law in order to collect information that would help him challenge the constitutionality of the state's death penalty protocol.

By a slim 6-5 vote, the judges voted to deny en banc review and paved the way for the inmate's execution on Feb. 3.

But the closeness of the vote and a strongly worded dissent has given some hope to those who say states shouldn't be allowed to shroud their execution procedures in secrecy.

“I think that the closeness of the vote and the emphasis in the majority opinion on the timing of the challenge suggests that another challenge brought earlier by another death row inmate might obtain a different result,” Death Penalty Information Center Executive Director Robert Dunham told Bloomberg BNA.

No Due Process Right-of-Access

The U.S. Court of Appeals for the Eleventh Circuit's en banc decision let stand a Feb. 1 panel ruling, which held that Brandon Jones had no due process right to discover the information shielded by Georgia's stringent secrecy law, Ga. Code § 42-5-36.

Jones's lawyers insisted that the law, which blocked the convicted murderer from learning anything about the specific drug sources Georgia relies on or the qualifications of those who administer those drugs, violated his right to due process because it interfered with his ability to make a case that the protocol presents a risk of severe pain that is substantial when compared to the known and available alternatives.

But the panel, in an opinion by Judge Stanley Marcus, shot the challenge down, noting that it had rejected a similar attack in 2014 and adding that no other circuit court has recognized this type of due process right-of-access challenge.

Judge William H. Pryor Jr. joined Marcus in ruling against Jones, but Judge Charles Reginald Wilson dissented.

Jones—who at 72 was Georgia's oldest death row inmate—was put to death almost 37 years after he and an accomplice murdered a convenience store clerk during a botched robbery. Jones's accomplice was executed decades ago.

Secrecy Under Siege

Federal challenges to similar secrecy statutes in Arkansas, Missouri, Ohio and Louisiana have failed in the Fifth and Eighth circuits and in a federal district court in Ohio.

An Arkansas judge in December 2015 overturned the state's execution secrecy law and directed the department of corrections to disclose the drugs it will use in executions and the sources of those drugs.

A day later, however, the Arkansas Supreme Court stayed that order and is now accepting briefs from the parties.

The inmates in that case are arguing that without disclosure of the source and other information they have no way to determine whether the midazolam, vecuronium bromide or potassium chloride obtained by the state will cause them to experience a demonstrated risk of severe pain and that the risk is substantial when compared to the known and available alternatives.

Cash-Filled Envelopes

Various news organizations have filed suits in Arizona, Missouri, Pennsylvania and Oklahoma claiming that the secrecy provisions—dubbed “black hood” laws on the notion that executioners in days of yore wore black shrouds to preserve their anonymity—violate the First Amendment and various state “sunshine” laws.

“The only way to effectively determine whether a policy is being properly administered and carried out is to have access to the information concerning the administration of that policy,” Dunham said.

“Secrecy is not only antithetical to traditional notions of good government, it's bad public policy,” he added, because it can be used to shield incompetence or wrongdoing. “Sunshine is the best disinfectant,” he said.

Dunham cited a recent report from BuzzFeed news indicating that Missouri's concern for secrecy has led it to pay its executioners with “envelopes of cash” in transactions that likely violated federal tax reporting requirements.

Proven Track Record

Marcus wrote both the panel decision and the opinion for the six-member majority that denied Jones's petition for en banc review.

Marcus said that the full court wouldn't hear the case for the reasons stated in the panel order denying Jones's motion for stay and then offered some “additional thoughts.”

Jones's petition was not only barred because it runs counter to Eleventh Circuit precedent and the trend in other circuits, Marcus said, but also because Jones couldn't identify any liberty interest that was jeopardized by the Georgia protocol.

Even if the court overruled existing precedent and struck down Georgia's statute, Jones still wouldn't be able to plead a known and available alternative source of pentobarbital, Marcus said.

“[W]e ought to be particularly reluctant to interfere in Georgia's enforcement of its lethal injection protocol since its current protocol—using compounded pentobarbital provided by an undisclosed source—has actually been used at least seven times in the last year, without incident,” Marcus wrote.

Untimely Challenge

In any event, Marcus added, the “equities” were not in Jones's favor because stays of execution are disfavored when the claim could've been brought in a more timely manner. Jones waited almost three years after the secrecy law was passed and only filed suit in federal court at the end of December 2015, Marcus noted.

Jones seeks a “newly created federal due process right to pre-litigation discovery,” Marcus said, ”all in the hope that learning the identity of the manufacturer will somehow provide a springboard to establish a potential, if currently unidentifiable, infirmity in Georgia's execution protocol.”

“That asks us to do too much,” Marcus said.

Chief Judge Edward Earl Carnes and Judges Gerald B. Tjoflat, Frank M. Hull, William H. Pryor Jr. and Julie E. Carnes joined Marcus's opinion.

Macabre Catch-22

In a dissent joined by Judges Beverly B. Martin, Robin S. Rosenbaum, and Jill Pryor, Judge Charles Reginald Wilson argued that the secrecy provision denies death row prisoners the “basic ingredient of due process” by preventing them from accessing information necessary to protect their Eighth Amendment rights.

Judges Rosenbaum and Jordan added separate dissents, arguing that the Georgia law has “constitutional problems.”

According to Dunham, death row inmates in states with secrecy laws like the one in Georgia, are in a “Catch-22” situation.

“They're already dealing with the macabre requirement from Glossip v. Gross, that they have the burden of coming forward with a different way to terminate their own life,” he said.

Now they have to try to meet that burden even though the state won't give them access to the information they need to meet that test, he added.

Jones was represented by the Federal Defender Program, Atlanta, and McDermott Will & Emery LLP, Chicago. The Georgia Department of Corrections was represented by the Georgia Attorney General's Office, Atlanta.

To contact the reporter on this story: Lance J. Rogers in Washington at lrogers@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

For More Information

The 11th Circuit en banc decision is athttp://www.bloomberglaw.com/public/document/Jones_v_Commr_Ga_Dept_of_Corr_No_1610277_2016_BL_27673_11th_Cir_F.

The 11th Circuit panel decision is at http://www.bloomberglaw.com/public/document/Jones_v_Commr_Ga_Dept_of_Corr_No_1610277_2016_BL_26653_11th_Cir_F.