Arkansas Supreme Court Considers Execution Transparency

Several years ago, the state agreed to disclose where it gets its execution drugs. Then the legislature changed the law, making that information confidential.

The Arkansas Supreme Court on Thursday considered whether the state has to disclose where it obtains its lethal injection drugs, with some justices asking questions skeptical of the state’s position that the information can be kept secret. The majority of the justices remained silent throughout the arguments.

In 2013, the state signed a contract with death row inmates, agreeing to disclose information about where the drugs come from. Just two years later, however, the legislature changed the law, making that information confidential.

After a lower state judge said the new law didn't invalidate the state's agreement, Arkansas Attorney General Leslie Rutledge appealed to the State Supreme Court.

On Thursday, Solicitor General Lee Rudofsky argued the information is irrelevant.

"They don't want it for any reason of relevancy," Rudofskey said. "There is clearly an effort going on to stop manufacturers and suppliers through intimidation and threats from selling to [the Arkansas Department of Corrections]."

In recent years, manufacturers have taken steps to keep their drugs out of the hands of death penalty states, leading some to go to less reputable sources. Arkansas purchased illegal lethal drugs from a supplier in the U.K. in 2011, and eventually had to turn the drug over to the DEA.

The state insists that this time the drug is FDA-approved, and that the contract they signed in 2013 is no longer valid.

"There is no current contract," Rudofskey said. "There may have been a contract in 2013, but it doesn't extend in perpetuity."

"But we also have a unique constitutional provision that says the state has to publish who pays for everything," Justice Rhonda Wood said. "How can the legislature pass a law that says you can't release the information?"

"I think the argument is that the legislature has created a situation that undermines that mandatory transparency requirement," Justice Courtney Goodson said.

The state said the legislature was responding to an "emergency," and that if it is in violation, "it is not a consequence for this court to enforce, it's a consequence for the people to enforce by voting them out if they think they haven't followed the constitution."

The inmates' attorney, John Williams, argued that allowing the state to pass laws to circumvent agreements it has made "would end settlement agreements as we know them."

"But there's a new law," Justice Goodson responded. "Does the contract continue forever?"

Williams responded that there's no limiting provision in the agreement, so it does continue forever.

The state argued that the inmates weren't entitled to the information because they have not come up with a better alternative for how they should be executed, a requirement under recent U.S. Supreme Court decisions. The inmates responded with five proposals, including the firing squad — a proposal the state said was not viable.

"It's been done in other states before," Williams said. "Recently there was a prisoner who was escaping from an Arkansas prison, and a corrections officer shot and killed him while he was running away. Surely if they can do that, they can do it in a controlled environment like a firing squad."

Arkansas has not carried out an execution in more than 10 years.

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