Arkansas' governor said Tuesday he supports an effort to increase the secrecy surrounding the state's lethal injection drug supply by keeping the drugs' manufacturers and labels off-limits to the public.
Republican Gov. Asa Hutchinson told reporters he supports a plan to expand a 2015 law keeping secret suppliers of the three drugs the state uses to put inmates to death. The state Board of Corrections is expected on Wednesday to review the proposal, which is among several measures prison officials have recommended going before the Legislature next year.
The proposed changes are in response to two state Supreme Court rulings over the past year that a 2015 law preventing the disclosure of the state's lethal injection drug supplier did not apply to the drug manufacturer. The court in November and again in March ruled that the state must release the package insert and labels for its execution drugs, noting that the law did not specifically prevent the drugmakers from being identified.
"Because the law had a gap in it that didn't include manufacturers, the whole intent of the original law has been prevented," Hutchinson said. "So it needs to be amended so the original intent is accomplished so that the supply chain for the supplier of lethal injections is confidential."
Hutchinson and state prison officials say that releasing the information has made it difficult for Arkansas to find execution drug supplies. Arkansas' supply of vecuronium bromide, one of three drugs used in executions, expired in March and the state has not found a replacement.
The proposal adds manufacturers to the list of information that can't be released about the state's lethal injection drugs, according to a letter to the board's chairman dated July 2. The proposal would also prohibit the release of the drug labels and inserts, even in redacted form. Department of Correction spokesman Solomon Graves said the change wouldn't prevent the state from releasing information about when the drug was obtained, how much was paid for it, or its expiration date.
It would also require the Department of Correction's director to certify under oath that the drugs were approved by the Food and Drug Administration and made by an FDA-approved manufacturer, obtained from a facility registered with the FDA or obtained from a nationally accredited compounding pharmacy.
Arkansas was sued last year after it refused to release the labels and inserts. The Associated Press has previously used the labels — with the manufacturer's name blacked out — to identify drugmakers whose products would be used in executions. The state Supreme Court has allowed the state to redact other information from the labels, such as the lot and batch numbers of the drug.
Arkansas put four inmates to death over an eight-day period last year under a plan that had originally called for executing eight inmates before the state's supply of midazolam, a sedative used in lethal injections, expired. A lawsuit by a group of death row inmates challenging Arkansas' lethal injection process is pending in federal court. An attorney for two of the inmates in the lawsuit said secrecy surrounding the drugs increases the risk that an execution would violate the Constitution's prohibition of cruel and unusual punishment.
"The ability to know where it's from is an important check to make sure the government is doing it the proper way," Jeff Rosenzweig said.
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