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Execution-drugs bill on records clears Arkansas Senate

by Michael R. Wickline | March 12, 2019 at 4:30 a.m.
Sen. Bart Hester, R-Cave Springs, waits Monday in the Senate to present a bill that would exempt documents re- lated to execution drugs from Freedom of Information Act requests. More photos are available at arkansasonline. com/312genassembly/

Legislation that would exempt almost all documents related to the state's execution drugs from public records requests handily cleared the Arkansas Senate on Monday.

The Senate voted 25-9 to approve Senate Bill 464 by Sen. Bart Hester, R-Cave Springs, sending the bill to the House for further action.

The state Department of Correction has been without a usable supply of execution drugs since last year, which officials attribute in part to the ability of journalists, public advocates and attorneys to identify the manufacturers of previous drug supplies under current law.

Many large pharmaceutical companies oppose the use of their products in executions, and they can put pressure on suppliers and pharmacists to stop them from selling certain drugs to state executioners.

The confidentiality provisions in SB464 would give broad exemptions from the state's Freedom of Information Act to any documents that "may" identify, or lead to the identification of, drugmakers, suppliers, testers or transporters.

Asked why Gov. Asa Hutchinson supports the bill and whether he had second thoughts about it in light of the opposition of the Arkansas Freedom of Information Task Force and the Arkansas Freedom of Information Coalition, Hutchinson said in a written statement, "This bill is essential to have confidentiality in the supply chain for lethal drugs.

[RELATED: Complete Democrat-Gazette coverage of the Arkansas Legislature]

"When the Legislature passed the first law, the original intent was to provide confidentiality. Because of an unintentional omission, manufacturers were not included," the Republican governor said in a written statement.

"So this legislation simply gives meaning to the original law of confidentiality passed by the Legislature. I have great respect for what the FOI task force is doing, but, again, this legislation simply extends the same principle to manufacturers that we have had for retailers and others in the supply chain," Hutchinson said.

Hester told senators that the most important part of the bill is "we are making ... recklessly releasing that information a Class D felony," punishable by up to six years in prison.

Sen. Will Bond, D-Little Rock, questioned the basis for making that a Class D felony.

"The reason is this particular issue is a hot-button issue and we felt like someone, who is probably willing to circumvent the entire will of the people, the entire will of the Legislature over a personal belief on this," should face a severe consequence, Hester said.

But Sen. Linda Chesterfield, D-Little Rock, said, "If you are going to take people's lives, the people in this state have a right to know what you are using and by what manufacturer because we have some responsibility in this state to make sure that what we do, even in death, is done decently and in order.

"So now a person who exercises his or her will to say, 'This is what they used and I think it is wrong,'" they will face a severe prison sentence and fine, and "it doesn't make sense," she said.

"We should go with transparency. If you want to do it, you ought not be ashamed of what you are doing," Chesterfield said.

"It is only the manufacturer's identity that we are keeping private," Hester said.

Under SB464, he said, the director of the Correction Department "shall certify under oath the drug ... meets the requirements of the subsection, so we know Director [Wendy] Kelley will sign and certify that the drug" is what is needed for an execution.

The Arkansas Freedom of Information Task Force was created by state law and is a bipartisan group of nine members who represent government, academia and the media. The task force reviews laws that affect the state's Freedom of Information Act and makes recommendations to the governor and legislators regarding those changes.

The Arkansas Freedom of Information Coalition is a private group; among its members are journalists, lawyers and people representing academia and public relations.

Last Thursday, Sonny Albarado, an editor of the Arkansas Democrat-Gazette and member of the coalition, told a Senate committee that the bill would allow the state to switch the types of drugs in executions "without anyone knowing there's a change."

Meanwhile, the task force on Friday voted unanimously not to recommend the bill's passage.

Hester said earlier he wouldn't meet with the task force because he doesn't have time and nothing the task force members say will affect his bill.

The Correction Department, which holds 30 men on death row at the Varner Unit in Lincoln County, announced last July that it had ended its search for execution drugs, after the Arkansas Supreme Court ordered the agency to produce certain documents related to the drugs to members of the public who sought them through public records requests.

The method of execution now used in Arkansas calls for a three-drug "cocktail" -- made up of the sedative midazolam, the paralytic vecuronium bromide and a heart-stopping dose of potassium chloride. The makers of those drugs have accused the Correction Department of bypassing company controls in order to acquire the drugs from third-party suppliers.

Each of the three drugs once possessed by the department have expired, and the department has been unable to acquire replacements, according to department spokesman Solomon Graves.

Other states faced with similar difficulties in maintaining supplies of execution drugs from pharmacists have turned to alternative methods. Last year, Oklahoma announced it would become the first state to switch to suffocation through nitrogen gas as its primary form of execution. Mississippi and Alabama have also approved the method, though it has yet to be tested, according to the Death Penalty Information Center.

Changing the method of execution, however, would likely result in years of subsequent litigation from the prisoners facing death. The state's current protocol has been upheld by both the Arkansas and U.S. Supreme Courts, and some lawmakers have said they are hesitant about a change.

Information for this article was contributed by John Moritz of the Arkansas Democrat-Gazette

A Section on 03/12/2019

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