- Associated Press - Thursday, March 20, 2014

MONTGOMERY, Ala. (AP) - Alabama’s prison commissioner is declining to disclose the suppliers of Alabama’s lethal injection drugs, citing a confidentiality order in a lawsuit filed by an inmate.

Alabama Department of Corrections Commissioner Kim Thomas issued a statement Thursday denying separate public records requests filed by The Associated Press, Montgomery Advertiser and The Anniston Star. Thomas cited a confidentiality order in a 2011 lawsuit filed by death row inmate Thomas Arthur challenging the state’s lethal injection drug protocol as potentially cruel and unusual punishment.

“While the department generally considers execution related documents confidential and exempt from public disclosure under Alabama law, because of the pending litigation, I will abide by the court order and will not release any execution information,” Thomas said. The Associated Press request sought records regarding execution drug purchases over the past five years.

Lawyers from both sides of the Arthur lawsuit agreed in the 2012 confidentiality order signed by a federal judge to not disclose “current and past ADOC contractors or any other individual or entity currently or previously involved in the execution of any Alabama death row inmate.”

The prison department is simultaneously seeking legislation that would keep the names of manufacturers and suppliers of the drugs secret and off limits to both the public and the courts.

Alabama and other lethal injection states are fighting to keep the source of their execution drugs secret as a national scarcity has forced states to use substitutes and made some suppliers hesitant to sell the drugs. Opponents of secrecy laws, like the one being sought in Alabama, say the information about how those drugs are manufactured and obtained should be available to the public and inmates.

“There are real questions about whether the lethal injection process is constitutional and whether it creates a risk of torture,” said Randy Susskind, a lawyer with the Montgomery-based Equal Justice Initiative.

“Certainly the people who are being subjected to lethal injection should have a right to know how the death penalty is going to be carried out in terms of their ability to challenge whether it’s constitutional,” Susskind said.

Randy Hillman, executive director of the Alabama District Attorneys Association, called the lawsuits about the drugs the latest tactic by death penalty opponents.

“It’s all a ploy to do away (with) or delay the death penalty,” Hillman said.

Alabama uses a three-drug protocol for executions with successive injections of pentobarbital, pancuronium bromide and potassium chloride, according to court records that are public. The pentobarbital is supposed to render the inmate unconscious while the next two drugs stop the inmate’s respiratory functions and heart.

The department announced in April 2011 that because of a national shortage of sodium thiopental, that it would begin using pentobarbital as the first of the three-drug protocol. The prison system said it had previously received a small amount of sodium thiopental from Tennessee. The state said it turned the drug over to the Drug Enforcement Agency after being contacted by the federal agency.

The Department of Corrections also has declined to say whether it has any drugs remaining.

Republican Rep. Lynn Greer of Rogersville, the sponsor of the confidentiality bill, said earlier this week that Alabama is having trouble obtaining the drugs because pharmacies fear lawsuits and backlash from death penalty opponents. He said the state needed to approve the confidentiality bill to “resume capital punishment.”

The last execution in Alabama occurred July 25 when Andrew Lackey was put to death. It was the state’s first execution since October 2011

The Associated Press on Feb. 25 sent a public records request seeking documents related to current execution drug supplies and purchases made in 2013 and 2014.

Anne Hill, general counsel for the Department of Corrections, responded that “there are no documents responsive to your request.”

Death row inmate Arthur filed a federal lawsuit in 2011 challenging the state’s lethal injection process.

Arthur’s lawyers argued that the pentobarbital takes longer to take affect than sodium thiopental and that inmates would feel the effects of the final two drugs. They said an insufficiently anaesthetized inmate would be chemically entombed, unable to move but feeling an intense burning pain while the potassium chloride worked its way to his heart.

Arthur’s lawyers pointed to two executions with pentobarbital, Roy Blankenship in Georgia and Eddie Powell in Alabama, in which they said the inmates appeared to be in pain, with facial grimacing and writhing after the lethal injection process began.

The state of Alabama disputed those claims. A doctor for the state said the dose is greater than the amount needed to induce a barbiturate coma and much greater than the dose that would be used for anesthesia in a surgical setting.

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