Court requires state to provide lethal injection documents

By DARA KAM
THE NEWS SERVICE OF FLORIDA

THE CAPITAL, TALLAHASSEE, October 27, 2016.......... Rejecting arguments that the records must be kept secret, a federal magistrate has ordered the Florida Department of Corrections to give a decade's worth of documents about drugs used in the state's lethal-injection procedure to lawyers representing seven Arizona Death Row inmates.

Lawyers for the Arizona inmates and the First Amendment Coalition of Arizona in June filed a subpoena seeking years of records related to Florida's three-drug lethal injection protocol, including the types of drugs purchased, the strengths and amounts of the drugs, the expiration dates of the drugs and the names of suppliers.

The lawyers sought and received similar information from other states, including Georgia, Missouri and Texas, according to court records.

The Florida Department of Corrections refused to release the documents, arguing that the information is exempt under the state's broad open-records law and that the Arizona lawyers were on a "fishing expedition."

But on Monday, U.S. Magistrate Judge Charles Stampelos gave the corrections agency 21 days to provide the documents, outlining specifically how the records can be redacted to comply with state law.

The Department of Corrections is "reviewing the request and will comply with the court order," agency spokeswoman Michelle Glady said in an email Thursday.

The request for the records came in an Arizona death-penalty challenge focused on whether the use of midazolam, the first step in a three-drug lethal injection cocktail, violates Eighth Amendment protections against cruel or unusual punishment.

The U.S. Supreme Court has held that, in those types of cases, prisoners must provide an available alternative to the method of execution being challenged. Gathering the information from the other states is a "core component" to the inmates' claim that Arizona's lethal-injection process is unconstitutional, the Arizona lawyers argued.

Lawyer Joshua Anderson, who represents the Arizona plaintiffs, issued a statement Thursday describing Stampelos' decision as a “well-reasoned opinion.”

"The court is correct that states cannot carry out executions while concealing the details of the process behind a shroud of secrecy," Anderson said.

Arizona's death penalty has been on hold for two years following the botched 2014 execution of inmate Joseph Wood, who died nearly two hours after the lethal-injection procedure was started.

Before the Florida Department of Corrections filed a motion to quash the subpoena in July, the Arizona lawyers offered to limit the scope of their records request and to keep the documents off-limits to the public.

But after the sides met July 19, the Florida corrections agency "reiterated that it does 'not intend to produce any information pursuant to the subpoena without court order,' " Anderson wrote in August, objecting to the state's motion to quash the subpoena.

Florida officials have long treated information about the lethal injection drugs as a closely guarded secret. But, in the midst of the legal fight with the Arizona lawyers, the corrections agency this summer released hand-written logs to media outlets, including The News Service of Florida, which had requested information about the drugs.

Stampelos, noting that the state had provided the documents to the media, cited in his order a Tampa Bay Times story detailing information about midazolam purchases and stockpiling.

Florida law includes a public records exemption for "information which if released would jeopardize a person's safety" and information "which identifies an executioner, or any person prescribing, preparing, compounding, dispensing, or administering a lethal injection."

In his 24-page order, Stampelos acknowledged that releasing information about drug suppliers to the public could be harmful.

"…It is apparent that disclosure has the potential to thwart the government's ability to carry out executions. Harassed companies have ceased providing drugs for execution purposes. It also cannot be disputed that the impact upon companies and persons whose identities are disclosed is significant," he wrote.

But the federal magistrate ordered the state to provide the records anyway and redact portions that would reveal exempt information, such as the supplier of the drugs.

While the state must provide the redacted documents to the Arizona lawyers, the records may not be available to the general public, based on Stampelos' order.

"To the degree the department is concerned about the disclosure of even redacted documents which must be provided, the parties are encouraged to work cooperatively to draft a protective agreement that may reduce such concerns," he wrote, noting that "little cooperation occurred between the parties" before the Arizona lawyers issued the subpoena in June.

A bitterly divided U.S. Supreme Court last year signed off on the use of midazolam for executions, ruling that lawyers for Oklahoma prisoners failed to prove that the use of the drug "entails a substantial risk of severe pain." The Oklahoma prisoners had argued that the drug does not effectively sedate inmates during the execution process.

Florida and other states began using midazolam as the first step in a three-drug execution cocktail in 2013, after previously using a drug called pentobarbital sodium. The states switched because Danish-based manufacturer Lundbeck refused to sell pentobarbital sodium directly to corrections agencies for use in executions and ordered its distributors to also stop supplying the drug for lethal-injection purposes.

The death penalty in Florida has been under scrutiny for nearly a year, following a U.S. Supreme Court ruling, in a case known as Hurst v. Florida, in January that found the state's death penalty sentencing system gave too much power to judges, instead of juries, was unconstitutional.

Following the 8-1 decision in Hurst, the Florida Supreme Court indefinitely postponed two executions, and lawmakers hurriedly rewrote the death penalty sentencing law to address the U.S. court's concerns.

But, in a pair of decisions issued on Oct. 14, the Florida Supreme Court ruled that the new law is unconstitutional because it does not require unanimous jury recommendations before defendants can be sentenced to death.

Attorney General Pam Bondi has asked the justices to "clarify" their decision. Bondi is arguing that death penalty cases can continue to move forward, but defense lawyers maintain that cases in which prosecutors are seeking death should be postponed until the law is rewritten to prevent further litigation.