Faculty Notes

Prof. Eric Freedman Comments on Likelihood of Supreme Court Hearing a Suit Challenging Lethal Drug Secrecy

Eric M. Freedman, Maurice A. Deane Distinguished Professor of Constitutional Law

One Execution Botched, Oklahoma Delays the Next
By Erik Eckholm
The New York Times
April 29, 2014


Faced with shortages, Oklahoma and other states have turned to compounding pharmacies — lightly regulated laboratories that mix up drugs to order. Opponents have raised questions about quality control, especially after the widely reported dying gasps of a convict in Ohio for more than 10 minutes, and an Oklahoma inmate’s utterance, “I feel my whole body burning,” after being injected with compounded drugs.

Oklahoma later said it had found a federally approved manufacturer to provide the drugs for Tuesday’s executions, but refused to identify it.

Oklahoma’s attorney general, Scott Pruitt, derided the lawsuits over drug secrecy, calling them delaying tactics. Many legal experts, especially death penalty opponents, say otherwise.

Elsewhere, Texas has refused to reveal where it obtained a new batch of compounded drugs; a challenge is before the State Supreme Court. Georgia passed a law last year making information about lethal drug suppliers a “confidential state secret”; a challenge is also pending in that state’s top court.

This month, the United States Supreme Court declined to hear suits attacking drug secrecy in Missouri and Louisiana.

But three of the justices expressed interest, and the issue seems likely to be considered by the Supreme Court at some point, said Eric M. Freedman, a professor of constitutional law at Hofstra University.

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