Photographs by Thomas Metthe
Arkansas Department of Correction Director Wendy Kelley (left) answers a question during the Board of Corrections meeting Wednesday at the Wrightsville Unit.
Originally published July 12, 2018 at 04:30a.m., updated July 12, 2018 at 10:04a.m.
The Arkansas Board of Corrections held off Wednesday from endorsing staff-proposed legislation that would help mask the identities of makers of the state's lethal-injection drugs, a day after Gov. Asa Hutchinson endorsed the proposal.
State prison officials had drafted the legislation, which would keep private certain documents used by reporters to disclose the drug manufacturers ahead of executions. The plan was to put the proposal before lawmakers during the 2019 general session.
During consideration of the Department of Correction's legislative proposals Wednesday, Corrections Board Chairman Benny Magness pulled the drug-secrecy proposal from the agenda. He later said he wanted to wait to hear input from the attorney general.
"My belief is we didn't give that [legislation] enough time to talk about and consider," Magness told a reporter afterward.
A spokesman for Attorney General Leslie Rutledge said Wednesday that Rutledge will review the proposed legislation to determine its constitutionality.
Magness added that issues related to the state's execution protocol are particularly weighty in the public's eye -- though he declined to offer his own thoughts on the latest proposal.
"Nothing compares with that," he said.
The state's prison system has long sought to keep the sources of its execution drugs secret as a way of maintaining a steady supply.
The current Method of Execution Act, passed in 2015, primarily relies on a three-drug "cocktail" for lethal injections, made up of midazolam, vecuronium bromide and potassium chloride. The direct supplier of each drug is kept confidential under the law. However, package inserts and drug labels are allowed to be disclosed.
The department, for a time, stopped releasing the package inserts and labels after reporters were able to use the documents to identify the original manufacturers -- prompting complaints from companies that objected to their drugs being used for executions.
The Arkansas Supreme Court said last year, and in a follow-up ruling in March, that such attempts at secrecy violated the law.
Since the court ruled that the drug manufacturers are subject to public disclosure, the Department of Correction has been unable to re-stock its supply of execution drugs.
As of Wednesday, the state had no available supply of vecuronium bromide, the second drug used in executions, according to prisons spokesman Solomon Graves.
Graves said he, along with Department of Correction Chief Legal Counsel Jim DePriest, helped craft the legislative proposal to keep the identities of manufacturers free from disclosure. The department's management team also provided input, he said.
The draft proposal was sent to the Board of Corrections members for review on July 2, Graves said. The board met Wednesday at the Wrightsville Unit in Pulaski County for its monthly meeting.
Speaking to the Little Rock Rotary Club on Tuesday, Hutchinson backed the proposed legislation. "Because of a gap in [the law] that didn't include manufacturers, the whole intent of the original law has been prevented," he said.
Last year, Hutchinson scheduled nine executions, five of which were halted by the courts. Four executions were carried out over the objections of pharmaceutical companies that said the state had obtained their products for executions without their knowledge.
As the board met within the prison Wednesday, a planned execution in Nevada was called off over a lawsuit in that state filed by a New Jersey-based pharmaceutical company. The company, Alvogen, objected to the midazolam it manufactured being used in executions.
The planned execution of the Nevada inmate, Scott Dozier, also would have been the first in the nation to use an experimental new drug combination that includes the powerful opioid fentanyl.
Nevada, like other states, has proposed new methods of execution as more typical execution drugs become harder for prisons to find. In Arkansas, the only methods of lethal injection allowed by law are the three-drug cocktail or a single dose of barbiturates.
Graves said the department had no plans as of Wednesday to ask lawmakers to expand the law to allow for more methods of execution.
Metro on 07/12/2018
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