ATLANTA — Georgia's highest court ruled in an opinion published Monday that a state law that makes the identity of an execution drug supplier a "confidential state secret" is constitutional.
In a 5-to-2 decision Monday, the Georgia Supreme Court reversed a lower court ruling that granted a stay of execution to death row inmate Warren Lee Hill. The stay was issued after Hill's lawyers challenged the constitutionality of the 2013 law.
Hill was sentenced to death for the 1990 beating death of fellow inmate Joseph Handspike. Hill bludgeoned Handspike with a nail-studded board while his victim slept, authorities have said. At the time, Hill was already serving a life sentence for the 1986 slaying of his girlfriend, Myra Wright, who was shot 11 times.
Presiding Justice P. Harris Hines wrote in the 33-page majority opinion keeping secret the identity of entities involved in an execution can shield them from harassment or retaliation from family members of inmates or from death penalty opponents. Hines added that, without that confidentiality, there is a significant risk that entities needed for an execution might be unwilling to participate.
"(W)e conclude that Georgia's execution process is likely made more timely and orderly by the execution-participant confidentiality statute and, furthermore, that significant personal interests are also protected by it," the majority opinion says.
In a dissenting opinion, Justice Robert Benham recounted the details of the botched April 29 execution of Oklahoma inmate Clayton Lockett, who writhed on the gurney, gritted his teeth, and moaned before dying of an apparent heart attack 43 minutes after the start of his execution. The secrecy law puts the state on a path that denies death row inmates their rights to due process and could lead to a result similar to what happened in Oklahoma, Benham wrote.
"The fact that some drug providers may be subject to harassment and/or public ridicule and the fact that authorities may find it more difficult to obtain drugs for use in executions are insufficient reasons to forgo constitutional processes in favor of secrecy, especially when the state is carrying out the ultimate punishment," the dissenting opinion says.
Hill's lawyers have argued they need to know where the drug comes from so they know whether they have grounds to challenge the use of the drug on the basis of the constitutional protection against cruel and unusual punishment.
The majority opinion says Hill's team failed to demonstrate that his execution by pentobarbital made by an undisclosed compounding pharmacy carried an unconstitutional risk. Pentobarbital is a common drug and compounding pharmacies are relied upon to fill millions of prescriptions every year across the country, the majority opinion says.
Benham countered that the majority was wrong to dismiss Hill's claims as speculative.
"I would hold that it is a violation of due process to reject Hill's cruel and unusual punishment claim as speculative while simultaneously denying him the means by which he has any hope of proving that claim," the dissenting opinion says.