The Warren Hill Execution: A Late Challenge Over Lethal-Injection Drug

Georgia has made the method by which it acquires pentobarbital a "state secret," which Hill's lawyers say raises questions about needless suffering and separation of powers.
2001 file photo shows the death chamber at the state prison in Jackson, Georgia (Ric Feld/AP)

UPDATE: 3:50 PM ET: A state court trial judge this afternoon issued a temporary stay blocking tonight's scheduled execution so she could hold another hearing on this topic on Thursday, July 18th. Her stay will likely hold through then, at least. Meanwhile, the temporary stay at the state level permits the United States Supreme Court, which also had before it a stay request, to avoid for now issuing any sort of ruling. The justices have docketed Hill's substantive arguments for conference in September. The state's death warrant expires on Saturday so if it prevails we still could see an execution Thursday evening.

Original post:

For years now there have been serious constitutional questions about Georgia's plan to execute Warren Lee Hill, a man whom all government doctors now agree is "mentally retarded."* As a matter of fact and law, such an execution is supposed by be barred by the Supreme Court's precedent in Atkins v. Virginia, a 2002 case in which the justices, by a vote of 6-3, declared that the Eighth Amendment's prohibition against "cruel and unusual" punishment precludes the execution of people whose cognitive impairment renders them unsuitable for the criminal justice system's ultimate punishment.

But as Hill's execution grows near -- barring relief from the United States Supreme Court he is scheduled to be put to death tonight at 7 p.m. EDT -- his lawyers have posed a separate, new constitutional question. In an series of emergency papers filed in state court late Friday, Hill's attorneys allege that a brand new Georgia statute, candidly called the Lethal Injection Secrecy Act, violates Hill's constitutional rights under both federal and state law because it purposely shields from judicial review the manner by which the drugs to be used in his execution were manufactured and obtained.

The argument made by Hill's lawyers Friday is as simple as the story of Georgia's quest for lethal injection drugs is complicated. For reasons that are now fairly well-known, the state has had trouble finding the drug -- Pentobarbital -- that is required to complete the execution. This is so because the U.S. manufacturer of the drug ceased to produce it in 2011 after European manufacturers embargoed its importation here (because of their objections to its use in American executions). As "official" supplies of the drug have dwindled, state officials have resorted to dramatic means -- including possibly unlawful means --  to obtain it. The Guardian's Ed Pilkington has done a great job of covering this aspect of the story. From his latest piece:

The [Georgia Department of Corrections'] existing stock of pentobarbital expired in March, and the Guardian understands that the state has turned to an unidentified compounding pharmacy in another state to try and skirt around international controls... In an attempt to circumvent international and national scrutiny, the Georgia state assembly passed a law in March that in effect permitted the corrections department to act in secret in seeking to acquire execution drugs.

The provision classifies the identity of any person or company providing drugs for use in lethal injections as a "state secret", thereby negating any public right to the information. It also allows the corrections department to keep secret the identity of doctors who collaborate with executions.

This unprecedented secrecy, Hill's lawyers argue in their Friday brief, this freezing out of judicial review of capital protocols, creates a "grave risk" that their client will be subjected to "excruciating and unnecessary pain and suffering" when he is killed. "The Defendant's intended use of an unknown, anonymously compounded substance not conforming to FDA guidelines for drug safety, purporting to be Pentobarbital to execute Plaintiff creates a substantial risk of needless suffering," they told a Georgia court. As of Monday morning, Georgia had not filed a response to the motion or brief filed Friday by Hill's attorneys.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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