ATLANTA — Lawyers for the state and for a Georgia death row inmate sparred Monday over whether prisoners awaiting execution should have access to information about where the state gets its death penalty drug.
In July, Fulton County Superior Court Judge Gail Tusan issued a stay of execution for Warren Lee Hill after his attorneys challenged the constitutionality of a new state law that classifies certain information about executions, including the source of the drug, as a "confidential state secret."
Lawyers for the state appealed Tusan's order to the Georgia Supreme Court, which heard oral arguments in the case Monday.
Sabrina Graham with the state attorney general's office asked the high court to rule that Tusan didn't have the authority to halt the execution and find the state's law constitutional. Manoj Varghese, a lawyer for Hill, argued that the stay of execution was appropriate and said death row inmates need to have information about where the execution drug comes from so they can challenge it if they believe it could cause unnecessary suffering.
The high court justices peppered both sides with questions but didn't give much indication whether they would rule on the law's constitutionality or whether they would limit their opinion to whether Tusan had the authority to issue the stay.
Hill was sentenced to death for the 1990 beating death of fellow inmate Joseph Handspike. Hill bludgeoned Handspike with a nail-studded board while his victim slept, authorities have said. At the time, Hill was already serving a life sentence for the 1986 slaying of his girlfriend, Myra Wright, who was shot 11 times.
Georgia uses the drug pentobarbital to carry out executions, but its supply of the drug expired in March. Pentobarbital has become increasingly difficult for states to obtain because its manufacturer has said it doesn't want the drug used for executions.
The state Department of Corrections confirmed in July that it planned to obtain the drug for executions from a compounding pharmacy, but it declined to release additional information, citing the new law.
When she stopped the execution, Tusan wrote that neither Hill nor the general public had enough information to measure the safety of the drug that would be used to execute Hill.
Hill's lawyers have said they need to know where the drug comes from so they know whether they have grounds to challenge the use of the drug on the basis of the constitutional protection against cruel and unusual punishment.
"The Legislature may not prohibit judicial access to information necessary to prove a cruel and unusual punishment challenge to the means of execution," Varghese said.
The use of compounding pharmacies is especially worrisome because they are not subject to Food and Drug Administration regulation, Varghese said.
Graham said lethal injection has been found to be a humane way to execute people, and the dosage of pentobarbital administered during an execution is so high that the person falls asleep very quickly and wouldn't have enough time to experience any negative side effects that could be considered cruel and unusual.
The state has said the secrecy is necessary to discourage retaliation against those who take part in executions and urged the justices to declare the law constitutional.
"Otherwise, we're just going to be up here for every single execution until this court makes this determination," Graham said.