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Released Opinion

May 19, 2014

This morning, the Supreme Court released opinions in nine cases, one of which is within the scope of our coverage. The Court will also be hearing oral argument in three cases later this morning.  A summary of the opinion released is below.

S14A0092 Owens, Comr., et al. v. Hill

This case involves a state statute protecting the identity of producers of drugs used for executions by the state of Georgia. (Although criminal cases are typically outside our coverage, this case involves the constitutionality of a state statute and thus is within our scope.) Warren Hill killed his girlfriend, and after being put in prison for that murder, killed a fellow inmate. In 1991, Hill was sentenced to death for the second murder. Hill’s execution has been set and stayed on several occasions, ultimately set for July 2013. At that point, Hill’s attorneys filed a new action in Fulton County seeking a stay and alleging OCGA 42-5-36(d) is unconstitutional. That statute makes the identity of “any person or entity who participates in or administers the execution of a death sentence and the identifying information of any person or entity that manufactures, supplies, compounds, or prescribes the drugs, medical supplies, or medical equipment utilized in the execution of a death sentence” a confidential state secret and not subject to disclosure.

The Fulton County Superior Court granted Hill a preliminary injunction stopping the execution, finding that Hill was likely to succeed on his constitutional claims because the lack of information about the identity prohibits Hill from having access to the courts, making him unable to assess whether the execution presents “a substantial risk of serious harm, or an objectively intolerable risk of harm.” As a result, Hill is unable to craft an Eighth Amendment claim and cannot have his constitutional rights adjudicated. The superior court also found the statute violated the separation of powers and is overbroad.

On August 26, 2013, the Supreme Court unanimously granted the state’s application, asking the parties to address four issues:

  1. Is the case moot since the current supply of pentobarbital has expired and it is unclear how the state would obtain a new supply of execution drugs?
  2. Did the Fulton County Superior Court have the authority to stay Hill’s execution?
  3. Could the whole issue of the statute’s constitutionality be avoided if Hill were given a sample of the drug for testing or given other information the statute does not prohibit?
  4. Did Judge Tusan err by issuing the stay based on Hill’s challenge of the statute’s constitutionality?

The case was heard on February 17, 2014.

On May 19, 2014, the Supreme Court reversed the trial court in a 5-2 decision (Hunstein and Benham, dissenting). Writing for the Court, Presiding Justice Hines explained that the case was not moot, that the Superior Court did have valid jurisdiction (but that jurisdiction was limited), that the availability of other forms of discovery did not affect the case, and that the confidentiality statute is not unconstitutional. The case was properly brought in Fulton County because it attacked the manner in which the state was going to carry out the sentence, not the sentence of death itself. The injunction in this case was different than a stay of the death sentence, because it may enjoin the use of a particular drug, but it is not a stay of the execution order itself. The Court also found that alternative means of discovery, such as providing a sample of the drug, may be sufficient in certain situations where a strong Eighth Amendment claim existed, but found this was not such a case.

On the constitutional questions, the Court determined that Hill’s expert testimony only showed there was some risk of a lack of sterility that could lead to symptoms or complications that were irrelevant to a person being executed. Hill ultimately failed to show that failing to learn the identity of the compounding pharmacy manufacturing the drug would improve his ability to make out an Eighth Amendment claim. The Court ultimately concluded that none of Hill’s constitutional claims had merit.

In dissent, Justice Benham (joined by Justice Hunstein) cited the recent botched execution in Oklahoma, expressing concern that the decision would place Georgia on a path to a denial of due process that could lead to other botched executions.

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