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GEORGIA (USA): JUDGE UPHOLDS STAY OF HILL’S EXECUTION
July 18, 2013: Superior Court Judge Gail Tusan kept in place a stay of execution for Warren Hill, expressing concern that a new state law that shields from public view the identities of those who make and supply Georgia's lethal injection drugs is unconstitutional. The ruling leaves the Georgia corrections department in a state of legal paralysis. Shortly before judge Gail Tusan of Fulton County superior court issued her ruling, the state prison service confirmed to the Guardian that it had successfully acquired sufficient supplies of the sedative pentobarbital to kill Hill on Friday evening. The source is likely to have been a compounding pharmacist, most probably in another state, who improvised a stock of pentobarbital on behalf of the corrections department. But the public is not allowed to know the location or identity of the outlet because the new Georgia law renders such information a "state secret".
This past Legislature, the General Assembly passed the state law, which took effect July 1, making the identities of the providers of lethal injection drugs a state secret. The judge ruled that by withholding from Warren Hill crucial details about the source and nature of the drugs that were to be used to execute him, the state was causing him "irreparable harm".
The judge added that the new law "unconstitutionally limits" the condemned man's access to legal redress as it prevented him from acquiring the information needed to mount an appeal under the Eighth Amendment ban on cruel and unusual punishment. Before reaching her decision, Tusan was presented with expert opinion from a consultant pharmacist specialising in drug safety and efficacy. In an affidavit, Dr Larry Sasich told the court that Georgia's likely use of a compounding pharmacist to concoct pentobarbital for the Hill execution presented the prisoner with substantial risk that the drugs would not work effectively. Sasich said that compounding pharmacies were a "substandard drug industry" that operated in a "grey market" largely exempt from the approval process and rigorous monitoring to which drug manufacturers must submit. The product from such pharmacies was liable to be unpredictable and potentially unsafe, with a level of sterility below that of federal rules. "The potential harm associated with the use of such contaminated or sub-potent drugs is extremely high," Sasich said. He added that Georgia's new secrecy law prevented Hill and his legal team from subjecting the pentobarbital supply to testing that would ensure that it would not cause him extreme pain and suffering during the execution process.
Though the ruling from a George state court will not create a federal precedent, the legal challenge to the new law will be closely watched by other states that have gone down a similar secrecy path in an effort to circumvent the drugs boycott. Arkansas, Florida, Oklahoma, South Dakota and Tennessee have all adopted secrecy provisions that keep the identity of compounding pharmacies hidden. If the state high court overturns Tusan's injunction, it remains possible that Hill could still be put to death by lethal injection at 7 p.m. Friday. (Sources: The Guardian, Atlanta Journal-Constitution, CBS News, 18/07/2013)
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