ATLANTA — The Georgia Supreme Court is set to hear oral arguments Monday in its review of a lower court's order temporarily halting an execution because of a challenge to a new state law prohibiting the release of information about the source of the state's execution drug.
Fulton County Superior Court Judge Gail Tusan in July issued a stay of execution for Warren Lee Hill. At issue is a law that classifies certain information about executions, including the source of the drug, as a "confidential state secret."
Hill's lawyers say the statute is unconstitutional. State attorneys have said the law is constitutional and necessary to discourage retaliation against those who take part in executions.
The high court has asked the two sides to address four questions:
— Is the case moot because the state's supply of execution drug pentobarbital has expired and it is unclear where the state would get more?
— Did the Fulton County Superior Court have the authority to halt Hill's execution?
— Could the issue of the law's constitutionality be avoided if Hill were given a sample of the drug for testing or if he were given other information not prohibited by the law?
— Did Tusan make a mistake when she stopped the execution based on Hill's challenge of the law's constitutionality?
Hill was sentenced to death for the 1990 beating death of fellow inmate Joseph Handspike. Hill bludgeoned Handspike with a nail-studded board while his victim slept, authorities have said. At the time, Hill was already serving a life sentence for the 1986 slaying of his girlfriend, Myra Wright, who was shot 11 times.
Georgia uses the drug pentobarbital to carry out executions, but its supply of the drug expired in March. Pentobarbital has become increasingly difficult for states to obtain because its manufacturer has said it doesn't want the drug used for executions.
The state Department of Corrections confirmed in July that it planned to obtain the drug for executions from a compounding pharmacy, but it declined to release additional information, citing the new law.
When Tusan halted the execution, she wrote, "neither the Plaintiff, nor the general public, has sufficient information with which to measure the safety of the drug that would be used to execute Plaintiff, as there is insufficient information regarding how it was compounded."
The state attorney general's office, which appealed Tusan's order, argues that the privacy of entities involved in executions must be protected for their safety and says Tusan lacked the power and rationale to halt Hill's execution.
"To date, Hill has been provided with more information about the procedure than any other inmate in Georgia, but because he cannot prove from that information that his execution will be cruel and unusual, he seeks more information," the state argued in court filings. "And he will continue in his efforts until he finds information that will stop his execution. Not because he is innocent or because his sentence is unconstitutional, but because he does not want to be executed."
Hill's lawyers argue that their challenge was filed in the correct court and say that the procedures surrounding the death penalty, including the origin and makeup of the drugs used, need to be transparent.
"Without access to this vital information, Appellee Warren Lee Hill, this Court and the entire state judiciary, and the public at large, are operating in the dark and have no means of determining whether the drug selected by the State will be safe and effective or whether it will subject Mr. Hill to unnecessary pain and suffering, and therefore violate the prohibitions against cruel and unusual punishment in both the Georgia and the federal Constitutions," Hill's lawyers wrote in a filing.