Lead Opinion
This case presents the question of whether it is unconstitutional for the State of Georgia to maintain the confidentiality of the names and other identifying information of the persons and entities involved in executions, including those who manufacture the drug or drugs to be used.
Hill was convicted of murdering a fellow inmate in the Lee County Correctional Institute by beating him to death with a sink leg embedded with nails. The jury sentenced him to death, and this Court affirmed. See Hill v. State,
The sentencing court issued Hill’s latest execution order on July 3,2013, setting Hill’s execution for the one-week period of July 13-20, 2013. See OCGA § 17-10-40 (providing for renewed execution orders). That execution order was filed after the July 1, 2013, effective date of a new law designating “identifying information” concerning the persons and entities that participate in executions, including those who participate in the procurement of execution drugs, to be a “confidential state secret.” OCGA § 42-5-36 (d) (2).
The Superior Court granted injunctive relief, which it described in various ways including as a stay of execution,
(1) Is this case moot due to the expiration of the compounded pentobarbital at issue and uncertainty as to whether and where the State will obtain pentobarbital to use if another execution date is scheduled for Hill?
(2) Considering that the Superior Court of Fulton County has neither appellate nor habeas jurisdiction to review the order of execution entered by the sentencing court, did it properly have jurisdiction to stay the order of execution entered by the sentencing court?
(3) Should questions about the constitutionality of OCGA § 42-5-36 (d) be avoided in light of the availability of other forms of discovery to Hill, by which Hill might, for instance, obtain production of a sample of the actual compounded pentobarbital to be used in his execution?
(4) Did the Superior Court of Fulton County err by granting a stay of Hill’s execution based on his challenge to the constitutionality of OCGA § 42-5-36 (d)?
For the reasons set forth below, we conclude that this case is not moot, that the Superior Court had limited but valid jurisdiction over this matter, that the possible availability of forms of discovery beyond what is forbidden by the execution-participant confidentiality statute does not affect this case, that the execution-participant confidentiality statute is not unconstitutional, and that the Superior Court erred by granting what amounted to an interlocutory injunction. Accordingly, we reverse the Superior Court’s ruling and dissolve the injunction that prohibited Hill’s execution with a drug produced by undisclosed persons and entities.
1. The injunctive relief granted in this case enjoins the use of a specific batch of drugs from a specific, although undisclosed, compounding pharmacy. Because that batch of drugs has now expired
2. The execution order in this case was filed by the sentencing court, the court that conducted Hill’s criminal trial. See OCGA § 17-10-40 (providing for renewed execution orders). The sentencing court’s execution order in Hill’s case contained nothing that dictated what drug or drugs should be used in his execution. In fact, it would have been inappropriate for the sentencing court’s execution order to contain such details about the method of execution, because Georgia law specifically delegates the task of deciding such details to the Department of Corrections. See OCGA § 17-10-44 (“The Department of Corrections shall provide a place for execution of the death sentence and all necessary apparatus, machinery, and appliances for inflicting the penalty of death.”); Hill,
Our reasoning here applies in a similar fashion to the question of whether this matter should have been raised in a habeas petition in the county where Hill is imprisoned. A challenge concerning the specific drug or drugs to be used to carry out a sentence of death is analogous to a challenge to the conditions of confinement meted out by a state officer under the authority of a sentence of imprisonment. Neither such challenge attacks a criminal sentence itself. Instead, each attacks only the manner in which a state officer may choose to enforce a criminal sentence. See McNabb v. Commr. Ala. Dept. of Corrections,
4. Finally, we address whether the Superior Court of Fulton County erred by granting what was in effect an interlocutory injunction barring the State’s use of his execution drug based on Hill’s constitutional claims. His constitutional claims concerned the nature of that drug and the statute requiring that identifying information regarding the persons and entities involved in executions, including those involved in the procurement of execution drugs, must be maintained in confidence. In determining whether to grant an interlocutory injunction, a trial court should consider whether
(1) there is a substantial threat that the moving party will suffer irreparable injury if the injunction is not granted; (2) the threatened injury to the moving party outweighs the threatened harm that the injunction may do to the party*309 being enjoined; (3) there is a substantial likelihood that the moving party will prevail on the merits of [his or] her claims at trial; and (4) granting the interlocutory injunction will not disserve the public interest.
SRB Investment Svcs., LLLP v. Branch Banking and Trust Co.,
(a) Introductory Matters. We begin our discussion of the interlocutory injunction by providing additional detail regarding Hill’s arguments and the evidence that he raised in support of it, arguments that the following discussion and citations to other courts show to be meritless. Pivotal here, we believe, is the fact that each of Hill’s arguments ultimately centers on his claim that there is an unconstitutional risk that his execution will amount to cruel and unusual punishment.
Our cases recognize that subjecting individuals to a risk of future harm — not simply actually inflicting pain — can qualify as cruel and unusual punishment. To establish that such exposure violates the Eighth Amendment, however, the conditions presenting the risk must be “sure or very likely to cause serious illness and needless suffering,” and give rise to “sufficiently imminent dangers.” Helling v. McKinney,509 U.S. 25 , 33, 34-35,113 S. Ct. 2475 ,125 L. Ed. 2d 22 (1993) (emphasis added). We have explained that to prevail on such a claim there must be a “substantial risk of serious harm,” an “objectively intolerable risk of harm” that prevents prison officials from pleading that they were “subjectively blame*310 less for purposes of the Eighth Amendment.” Farmer v. Brennan,511 U.S. 825 , 842, 846, and n. 9,114 S. Ct. 1970 ,128 L. Ed. 2d 811 (1994).
Baze,
The parties agree that the State willingly provided Hill with information indicating that Hill’s execution drug had been manufactured by a compounding pharmacy, which is a type of pharmacy that produces individually-produced medications.according to the directions provided in individual prescriptions written by physicians. Hill’s expert admitted that “somewhere around 3 to 4 percent of all drugs dispensed in the U.S. are compounded.” Hill’s expert alleged that the drugs produced by compounding pharmacies, which are overseen by state governments rather than the FDA, are of less reliable quality than drugs produced by major manufacturers. However, he also admitted that “[n]o one knows” what percentage of the drugs produced by compounding pharmacies are contaminated. He cited a study by the FDA from 2006 that concluded that 34 percent of the “sterile products” produced by certain compounding pharmacies that it had surveyed were contaminated. However, even accepting this figure regarding the contamination of “sterile products,” the fact remains that sterility is simply a meaningless issue in an execution where, as the record showed, unconsciousness will set in almost instantaneously from a massive overdose of an anesthetic, death will follow shortly afterward before consciousness is regained, and the prisoner will never have an opportunity to suffer the negative medical effects from infection or allergic reactions from a possibly non-sterile drug. Particularly unpersuasive is Hill’s expert’s testimony that certain contaminants also could have the following effect: “Their
(b) Threat to the Moving Party. As we noted above, the essential threat to Hill in this case, if any, is the threat that his execution would amount to unconstitutionally cruel and unusual punishment. This threat must be measured by the legal standard that would be applied to such a claim if it were more fully litigated and by the quality of Hill’s showing that he ultimately could support such a claim factually. As the discussion of Hill’s factual presentation in the Superior Court above demonstrates, Hill’s factual assertions fall far short of satisfying the legal standard applied under the Eighth Amendment, which involves a showing of a “substantial risk of serious harm” that is “sure or very likely to cause serious illness and needless suffering.” Baze,
(c) Harm to the Party to be Enjoined. As the Superior Court correctly noted, quoting from the Supreme Court of the United States, “[t]he State and the victims of crime have an important interest in the timely enforcement of a sentence.” Hill,
(d) Likelihood of Success on the Merits. The Superior Court ruled on multiple grounds
(1) Access to the Courts and Due Process. The Superior Court ruled that the execution-participant confidentiality statute, OCGA § 42-5-36 (d) (as amended effective July 1, 2013), denied Hill the right to access to the courts and due process. See Bounds v. Smith,
[Plaintiffs’ access-to-the-courts argument still hinges on their ability to show a potential Eighth Amendment violation. One is not entitled to access to the courts merely to argue that there might be some remote possibility of some constitutional violation.
Whitaker v. Livingston,
(2) Supremacy Clause and Separation of Powers. Our resolution of Hill’s arguments based on the Supremacy Clause
(3) First Amendment. The Superior Court concluded that the execution-participant confidentiality statute violated the First Amendment guarantee of free speech. Unlike most First Amendment issues, which concern restrictions on the freedom to disseminate information already within one’s own possession, the issue here concerns the State’s refusal to disclose information within its control. The Supreme Court of the United States has held:
The government may classify certain information, establish and enforce procedures ensuring its redacted release, and extend a damages remedy against the government or its officials where the government’s mishandling of sensitive information leads to its dissemination.
Florida Star v. B. J. F.,
However, the Supreme Court has also held that certain limited forms of government proceedings must be held open to the public under First Amendment principles, and it has held that the test for whether the First Amendment attaches to a given governmental proceeding involves an assessment of (1) whether access has been granted historically and (2) whether public access would play a positive role in the functioning of the process. See Press-Enterprise Co. v. Superior Court of California for the County of Riverside,
Although many governmental processes operate best under public scrutiny, it takes little imagination to recognize that there are some kinds of government operations that would be totally frustrated if conducted openly.
Id. at
The reasons for offering such privacy are obvious, including avoiding the risk of harassment or some other form of retaliation from persons related to the prisoners or from others in the community who might disapprove of the execution as well as simply offering those willing to participate whatever comfort or peace of mind that anonymity might offer. Although the identity of the executioner who actually inflicts death upon the prisoner is the most obvious party in need of such protection, we believe that the same logic applies to the
Second, without the confidentiality offered to execution participants by the statute, as the record and our case law show, there is a significant risk that persons and entities necessary to the execution would become unwilling to participate. See Hill,
5. In light of the foregoing, the Superior Court’s ruling granting what amounted to an interlocutory injunction is reversed, and the case is remanded for further proceedings on the merits not inconsistent with this opinion.
Judgment reversed and case remanded.
Notes
The State intended to use pentobarbital for Hill’s scheduled execution, and the evidence that we discuss below addresses that particular drug. Our holding here would apply to any other drug to the extent that such a drug might be comparable to pentobarbital in relevant ways.
OCGA § 42-5-36 (d) (as amended effective July 1, 2013), referred to in the discussion below as the execution-participant confidentiality statute, provides as follows:
(d) (1) As used in this subsection, the term “identifying information” means any records or information that reveals a name, residential or business address, residential or business telephone number, day and month of birth, social security number, or professional qualifications.
(2) The identifying information of any person or entity who participates in or administers the execution of a death sentence and the identifying information of any person or entity that manufactures, supplies, compounds, or prescribes the drugs, medical supplies, or medical equipment utilized in the execution of a death sentence shall be confidential and shall not he subject to disclosure under Article 4 of Chapter 18 of Title 50 or under judicial process. Such information shall be classified as a confidential state secret.
We discuss the exact nature of the injunctive relief at issue in Division 2.
The granting or denying of an interlocutory injunction is generally directly appealable. See OCGA § 5-6-34 (a) (4). This case involves a form of interlocutory injunction, regardless of whether the relief granted was properly referred to by the parties and the Superior Court as a stay of execution. See Zant v. Dick,
This Court has previously addressed claims regarding specific methods of lethal injection as part of sentencing court proceedings; however, this Court has never discussed the jurisdiction of those sentencing courts to address the issue. See, e.g., Rice v. State,
Our previous decisions assumed that claims regarding specific methods of lethal injection were appropriately raised in the habeas court; however, we never discussed the question of the habeas court’s jurisdiction. See, e.g., Hall v. Terrell,
Hill’s complaint stated that it was brought “to enforce the prohibitions against cruel and unusual punishment under Georgia and Federal Law.”
The State claimed in the Superior Court that it had obtained independent laboratory testing to verify the efficacy of the drug produced by the compounding pharmacy, and it provided a redacted copy of the report to Hill. Such additional safety measures, if properly demonstrated, would tend to counter a prisoner’s attempt to show that whatever risk of harm at issue “prevents prison officials from pleading that they were ‘subjectively blameless for purposes of the Eighth Amendment. [Cit.]” Baze,
We note that not all of the constitutional sub-claims discussed by the parties on appeal were ruled upon by the Superior Court. However, under the present circumstances we deem it appropriate in the interest of judicial economy to resolve these related matters of law on appeal. See Mason v. Home Depot U.S.A., Inc.,
The dissent asserts that the execution-participant confidentiality statute “has the effect of creating the very secret star chamber-like proceedings in which this State has promised its citizens it would not engage.” Dissent, p. 319. We reject this accusation, because Hill has had free and open access to the court system in Georgia and because his failure to prevail in court has been due simply to the fact that his claims are so speculative and unfounded.
The Supremacy Clause of the Constitution of the United States provides as follows:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
U. S. Const. Art. VI.
The Georgia Constitution provides as follows:
The legislative, judicial, and executive powers shall forever remain separate and distinct; and no person discharging the duties of one shall at the same time*315 exercise the functions of either of the others except as herein provided.
Ga. Const. of 1983. Art. I. Sec. II. Par. III.
Dissenting Opinion
dissenting.
On April 29, 2014, Clayton D. Lockett died of a massive heart attack. Unlike most people, Lockett knew when he would die because he was scheduled to be executed by the State of Oklahoma. Known to Lockett was the fact that he would be injected with a combination of three drugs to exact his death. Unknown to Lockett and his attorneys, despite their calls for transparency, was the source of any of the three drugs. During the attempted execution, Lockett’s veins failed, he reportedly twitched and mumbled, even after having been declared unconscious,
I write because I fear this State is on a path that, at the very least, denies Hill and other death row inmates their rights to due process and, at the very worst, leads to the macabre results that occurred in Oklahoma. There must be certainty in the administration of the death penalty. At this time, there is a dearth of certainty namely because of the scarcity of lethal injection drugs. Georgia’s confidential inmate state secret statute does nothing to achieve a high level of
The majority reasons that Hill has not shown the statute to be unconstitutional under the present circumstances because his claims regarding the specific drug that the State will use to execute him are merely speculative. Admittedly, speculative claims regarding deficiencies in an execution drug are insufficient to sustain a claim of cruel and unusual punishment. See Brewer v. Landrigan,
Hill presented expert testimony showing that compounding pharmacies are not regulated by the FDA, as are ordinary manufacturers of prescription drugs, that a significant number of compounding pharmacies have produced defective drugs in the past, and that a compounding pharmacy, in producing a specific batch of drugs for an execution, could produce drugs that would inflict great suffering on Hill. Much like the State of Oklahoma did in regard to the drugs used in the attempted Lockett execution, in this case the State has only made baseline assurances that the compounding pharmacy it used was able to produce a high quality execution drug. These assurances amount to little more than hollow invocations of “trust us.”
This Court has held that a statutory provision declaring information to be a state secret must yield to constitutional due process demands. See Head v. Stripling,
In light of my assessment of Hill’s due process claim, I would grant him access to information identifying the compounding pharmacy that produces his execution drug; although, I would direct that the information be released under appropriate safeguards to minimize any harm to individuals who are simply performing their jobs. See Zink v. Lombardi, 2014 U. S. App. LEXIS 3602, at *4 (8th Cir. 2014) (Bye, J., dissenting) (“Even if Missouri had provided basic guarantees of a regulated lab and licensed pharmacists, the skill-level and experience in compounding of the pharmacist in question is vital to ensuring Taylor is executed in a way which comports with the Eighth Amendment.”). Likewise, because learning the source of the bulk materials used by the compounding pharmacy could lead to information supporting Hill’s cruel and unusual punishment claim, I would also order that information disclosed to Hill. Id. at *5-6 (Bye, J., dissenting) (“Pain to Taylor may not be the fault of the compounding pharmacist, but could also be laid at the feet of suppliers who have failed to provide proper ingredients. Missouri has yet to provide
In sum, because I believe that the confidential inmate state secret statute denies Hill due process by preventing him from having a legitimate opportunity to prove his cruel and unusual punishment claim, I respectfully dissent to the majority’s decision to reverse the Superior Court’s granting of an interlocutory injunction pending the State’s disclosure of the information indicated.
I am authorized to state that Justice Hunstein joins in this dissent.
“Mr. Lockett’s apparent revival and writhing raised questions about the doctor’s initial declaration that he was unconscious and are sure to cast doubt on the effectiveness of the sedative used.” Eckholm, Erik, One Execution Botched, Oklahoma Delays the Next, The New York Times (April 29, 2014).
The execution began at 6:23 p.m. and Lockett was declared dead at 7:06 p.m. McBride, Bailey Elise and Murphy, Sean, Oklahoma Inmate Dies After Execution is Botched, The Associated Press (April 30, 2014).
“Madeline Cohen, a federal public defender..., said that while prison officials asserted that the problem was only with the intravenous line, ‘unless we have a full and independent investigation, we’ll never know.’ ” Eckholm, Erik, One Execution Botched, Oklahoma Delays the Next, The New York Times (April 29, 2014).
“Such secrecy undermines the public’s faith in the integrity of the justice system as it conceals from the public, lawyers, and those facing execution critical information about the lawfulness and reality of states’ execution procedures.” The Constitution Project, Irreversible Error: Recommended, Reforms for Preventing and Correcting Errors in the Administration of Punishment, p. 141 (2014). (See www.constitutionproject.org)
See also Land, Greg, Oklahoma’s Botched Execution is a Wake-Up Call in Georgia, Says Law Professor, Daily Report (May 1, 2014), quoting Professor Michael Mears as follows: “The defense bar is... about protecting the Constitution. How do we know what [drugs] they’re using and not telling us about?”