By: Joshua Bowling
The Associated Press and other media organizations have brought lawsuits against Arizona challenging the state’s secrecy regarding death penalty drugs.
The Arizona Republic, KPNX-TV Channel 12 (Arizona’s NBC affiliate), KPHO (Arizona’s CBS affiliate), Guardian News & Media LLC, and the Associated Press submitted the lawsuit on Oct. 23.
Director of the Arizona Department of Corrections, Charles L. Ryan, and Attorney General Thomas Horne are the defendants in the suit.
Gathering information on lethal injections is the nominal purpose of the lawsuit, the court filing read. The filing accuses the state government of infringing upon the public’s First Amendment rights by keeping the makeup of the drug and the administration process hidden.
The media outlets are seeking access to the manufacturing and administrative processes of the lethal injection drugs so as to give the information to the public.
Hanging was the primary means of execution in Arizona up until 1934, when the state adopted the gas chamber as the state-sanctioned death penalty.
In November 1992, the state moved to lethal injection via a constitutional amendment.
MCC professor of political science, Brian Dille, said that people do not necessarily need to know the inner workings of the death penalty, even if they are in favor of it.
The claim’s basis is that the people have a right to know what is in the drugs, a contested matter, according to Dille.
“Because we’re a democracy,” he said, “the people have the right to decide whether we engage in the death penalty. But that doesn’t necessarily mean they have to know everything.”
The state could claim an interest in hiding the details, Dille said, because there have been redresses against the companies providing the drugs in the past.
“Some people genuinely believe any form of death administered by the state – by definition – is cruel and unusual,” Dille said.
The lawsuit is “To determine whether lethal injection executions are fairly and humanely administered, or whether they can ever be,” according to the court filing.
The state has withheld information regarding the makeup, source, and quality of the death penalty drugs, information which has – historically – been open to the public, the filing read.
If the state keeps the company who provides the drugs hidden from the public, the public will not have a chance to take business away from the company.
Until 2010, Arizona used a three-drug protocol, made up of sodium thiopental, pancuronium bromide, and potassium chloride. The only FDA-approved manufacturer of sodium thiopental during this time was Hospira, a pharmaceutical company out of Illinois.
According to the court filing, Hospira ceased production of sodium thiopental in 2011, causing a shortage of the drug.
The Arizona Department of Corrections then changed the makeup of the drug at least three times, never disclosing the source, composition, or quality of the drug, the filing read.
According to the filing, the public has a right to know, given their freedoms in the First and 14th amendments.
This information should be made public, according to the filing, because state law mandates that at least 12 “reputable citizens” must be invited to view the executions, thereby making it a public affair.
The answer, Dille said, lies in the death penalty, not the means by which it is carried out.
“If the people of Arizona decided not to have the death penalty – and there are some very good arguments for not having the death penalty – then they need to not have the death penalty,” Dille said.
This lawsuit is missing the point, according to Dille. “Making life miserable for bureaucrats does not change the politics of the death penalty,” he said. “The better strategy would be to persuade the public to stop supporting it.”
Nursing major Ashley Kingsley believed the lawsuit had great merit.
“Any time you hide something from citizens – of our country, in particular – it’s wrong,” she said. “We were founded on freedom, and secrecy goes against that.”
The court document was filed by David J. Bodney, who leads the Media Law Group for Ballard Spahr, LLP. Ballard Spahr has over 500 attorneys across 14 offices.
Bodney has been with the firm for more than 30 years. One of his most famous cases occurred in 1999, when he and The Arizona Republic won the Arizona Newspapers Association’s Freedom of Information Award for his work in federal court representing Phoenix Newspapers, Inc., which is now owned by Gannett Corp.