- Associated Press - Thursday, December 3, 2015

LITTLE ROCK, Ark. (AP) - An Arkansas judge struck down a portion of the state’s execution law that keeps secret the source of drugs it uses, saying Thursday that drug suppliers do not have a constitutional right to be free from criticism.

Pulaski County Circuit Judge Wendell Griffen sided with death row inmates who challenged a law passed by lawmakers this year that prevents disclosure about the drugs that are used in executions. The judge also ordered the state to disclose drug details, including the makers and suppliers, by noon Friday.

“It is common knowledge that capital punishment is not universally popular,” Griffen wrote. “That reality is not a legitimate reason to shield the entities that manufacture, supply, distribute, and sell lethal injection drugs from public knowledge.”

Judd Deere, a spokesman for Arkansas Attorney General Leslie Rutledge, said late Thursday that the office had filed notice of appeal with the state Supreme Court. Rutledge also asked for an immediate stay of Griffen’s order.

“Attorney General Rutledge has a duty to defend the State’s lethal injection statute and disagrees with Judge Griffen’s order,” Deere wrote in an emailed statement.

In the filing for an immediate stay, attorneys for the office noted that states with secrecy laws regarding executions have generally won challenges to those laws. They believe Arkansas’ law is less stringent than many of those.

In his ruling, Griffen noted that a federal judge in Ohio last month granted a protective order to allow that state to maintain secrecy about the drugs, but he said that court erred because it accepted “what it acknowledged as no proof of ‘a single known threat’” as an indicator that disclosing a state’s source for drugs would pose an undue burden on that state.

Arkansas Gov. Asa Hutchinson said the judge’s decision was “troubling” because the drug suppliers were assured confidentiality, “so a sale was accomplished based upon that law and that promise of confidentiality.”

“There’s already a stay of the executions at issue by the court and so I can’t see any necessity for the immediate disclosure of that information,” he said.

The Arkansas Supreme Court put on hold executions for eight inmates until the inmates’ lawsuit challenging the state’s execution protocol and secrecy law could be heard.

Under the execution secrecy law, the Department of Correction has withheld the manufacturer and distributor of midazolam, vecuronium bromide and potassium chloride obtained last year, as well as other information.

Midazolam, a sedative, gained notoriety after being used during executions that took longer than expected last year in Arizona, Ohio and Oklahoma. The U.S. Supreme Court upheld the drug’s use in executions in June.

Earlier this year, The Associated Press identified three pharmaceutical companies that likely made Arkansas’ execution drugs; each company said it objects to its drugs being used that way.

The inmates argued that the secrecy law is unconstitutional. They want information on the drugs’ makers and suppliers to determine whether they could lead to cruel and unusual punishment. They also argued the secrecy law violates a settlement in an earlier lawsuit that guaranteed inmates would be given the information. The state has said the agreement is not a binding contract.

Griffen noted in his ruling that an attorney for the state said Arkansas’ suppliers “covertly sold” the drugs to the state despite directives from the pharmaceutical companies that they should not be sold for use in executions. He said the admission, “whether inadvertent of not,” was important because it shows the state could abide by the contract and still obtain drugs.

Jeff Rosenzweig, an attorney representing the inmates, declined to comment on Thursday’s ruling.

Griffen noted that Arkansas has a law outlining humane euthanization practices for animals.

“The court rejects the notion that domestic pets and livestock in Arkansas have the right to die free of unjustifiable or prolonged pain, but that the constitutional guarantee against ‘cruel or unusual punishment’ found in the Arkansas Constitution allows people who commit murders to be put to death as if they have no entitlement to such right,” he wrote.

Arkansas last executed an inmate in 2005.

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Associated Press writers Andrew DeMillo and Jill Bleed contributed to this report.

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