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Death Row Prisoners Blast ‘Kafkaesque’ Drug Secrecy Ruling

April 9, 2019, 6:14 PM

Tennessee officials want to have their cake and eat it, too, a group of death row inmates complains to the U.S. Supreme Court in a petition challenging a state court’s “Kafkaesque” ruling implicating execution drug secrecy.

Except the cake is information the prisoners say they need to prove their cruel and unusual punishment claim, and eating it, too, means executing them without due process.

“In the annals of increasing government powers and government assertions that citizens are powerless to contest, this case involves the most extreme example yet—via legislation, the State of Tennessee has taken away the ability of certain citizens to secure a fair hearing to prove that their Eighth Amendment rights are being denied them,” according to an outside brief filed Monday by a group called Conservatives Concerned About the Death Penalty. “If that precedent can be set in this context, what will prevent government actors from taking similar steps in countless other contexts?”

The inmates are challenging the state’s three-drug lethal injection protocol, which “hinges on the ability of one drug, midazolam, to block the torturous sensations of entombment and burning caused by two other drugs,” they say in their petition.

But as the Supreme Court reaffirmed last week in its contentious 5-4 decision in Bucklew v. Precythe, a prisoner claiming a state’s execution method violates the Eighth Amendment’s ban on cruel and unusual punishment needs to put forth an available and feasibly implemented alternative that will substantially reduce the risk of suffering.

State officials argue the proposed alternative here, a single-drug protocol of pentobarbital, is not readily available, and the state’s top court approved the status quo based on the challengers’ failure to offer “direct proof” otherwise.

The problem with that, the prisoners say, is that the state court approved government officials’ testimony based on their privileged communications with potential drug suppliers, which, under the state’s secrecy law, are shielded from discovery.

So the state’s secrecy law “ensured that petitioners’ claim would fail,” they argue, saying the issue goes beyond just Tennessee, citing a surge in such laws around the country in death penalty states.

The conservative group supporting the prisoners says the Bucklew decision, which ruled against an inmate’s Eighth Amendment challenge over heated dissent, makes their case even stronger. That’s because Missouri’s Russell Bucklew had “extensive discovery” into alternative methods of execution, and the majority in his case said death sentences are permissible “so long as proper procedures are followed.”

But that’s not the case here, the group says, “because there was no discovery—the essential discovery was completely barred.”

In this case, “Tennessee’s execution secrecy statute barred discovery into the state’s communications with 10 concededly willing suppliers,” the prisoners say in their petition. They add that it barred them from “exploring the details of the suppliers’ offers by deposing those suppliers or even the state officials with whom they interacted,” while, at the same time, “other state officials testified that they believed pentobarbital was not reasonably available because of information passed onto them by the very persons whom petitioners were prevented from deposing.”

The prisoners say they’re not challenging state secrecy laws in general, but, rather, the government’s ability to use one here as both a “sword” to win its alternative method argument and a “shield” from letting defendants test the state’s argument and, in turn, prevail on their constitutional claim.

So the state court’s “Kafkaesque ruling,” allowing their executions to go forward without fully exploring less risky alternative methods, “strikes at the core of due process,” they say, imploring the justices to step in.

State officials argue in opposition that the prisoners never presented to the state court the claim they’re raising now at the Supreme Court, and so the justices should decline to review it. Officials go on to argue that the justices should also reject the claim because due process does not entitle prisoners “to unlimited discovery to support their affirmative claims against the State.”

They, too, cite Bucklew, where Justice Neil M. Gorsuch’s opinion for the majority said it wasn’t an abuse of discretion for the trial court to deny the prisoner the ability “to learn the identities of the lethal injection execution team members, to depose them, or to inquire into their qualifications, training, and experience.”

They say the challengers can’t “force the State to disclose the identity of its drug procurer, its potential drug suppliers, or other participants in the execution process.” Requiring such disclosures, officials say, “would unduly burden the State by making it difficult, if not impossible, to carry out the death penalty.”

The case is Abu-Ali Abdur’Rahman, et al., v. Parker, U.S., 18-8332, petition pending.

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: John Crawley at jcrawley@bloomberglaw.com; Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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