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:
[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.
Why do Hill's attorneys worry about a risk of needless suffering? Because Georgia already has used its "illegally imported, compromised drug" in two other executions. And the results are worrisome. From the Hill brief:
To address this
shortage in 2010 and 2011, the state of Georgia obtained illegally imported,
expired, sub-potent drugs from a "pharmacy" run out of the back door of a
run-down driving school in London, England. The state of Georgia used these
drugs in two executions before the Drug Enforcement Agency ("DEA") raided
Georgia's lethal injection drug supply and confiscated Georgia's illegally imported
cache of drugs.Both executions that
used this supply of illegally imported, compromised drugs resulted in
significant pain and suffering for the individuals executed. In Brandon Rhodes'
case, his eyes remained open for the entirety of his execution, indicating
consciousness during the process. In the case of Emmanuel Hammond, Mr. Hammond's
eyes also remained open, and he grimaced and appeared to be trying to
communicate throughout his execution.
So not only is Georgia proceeding with an execution that ought to be barred by the Supreme Court's decision in Atkins, but the state also is proceeding unconstitutionally with Hill's execution by employing secret procurement procedures that create both risk of cruelty to the condemned and at the same time raise profound separation-of-powers questions. The question the Georgia courts must confront today is whether the legislative and executive branches may conspire to leave the judiciary in the dark about the machinations of capital punishment. "There never has been, in Georgia's history, such a court-blinding state secret-- not even for treason," argue Hill's lawyers in their complaint that accompanies their request for an emergency injunction to block the execution.