Opinion - Why Georgia can't kill Warren Lee Hill

The state's new lethal-injection law undermines its repeated attempts to kill one of its death row inmates

Warren Lee Hill should already be dead. But thanks to Georgia, which for years has feverishly pursued the death-row inmate's execution, as well as an unlikely and fortunate series of events, he has somehow managed to stay alive.

Hill, who was sentenced to death in 1991 for murdering inmate Joseph Handspike while already serving a life sentence for killing his then-18-year-old girlfriend Myra Wright, has avoided death by lethal injection on three separate occasions this year. In February, one reprieve came with less than 30 minutes before his execution — Hill had already eaten his last meal. During the past month alone, a judge halted two more scheduled executions.

The reason Hill, who has an IQ of 69, isn't dead yet has little to do with the long-standing claims over whether the execution of "mentally retarded" inmates (the court's phrase, not ours) constitutes cruel and unusual punishment and violates his Eighth Amendment rights. It's because Georgia's new controversial — and arguably unconstitutional — "Lethal Injection Secrecy Act" has breathed new life into Hill's case — and stymied the state's goal of seeing him die.

The secrecy law, which the General Assembly passed in March as a tacked-on amendment to an unrelated sex offender bill, keeps confidential the names of companies that supply the state with pentobarbital, the drug used in lethal injections. The measure, state lawmakers and attorneys say, protects companies from being harassed by anti-death penalty activists and allows the state to restock its drug supply with relative ease.

Gov. Nathan Deal signed the bill in May and it went into effect on July 1. The very next day, Georgia Attorney General Sam Olens scheduled another execution for Hill on July 15 — the first under the new secrecy law. Department of Corrections officials would not have to disclose the parties involved in the execution or the people buying and selling the drugs. But as the Associated Press discovered, the pentobarbital obtained for Hill's death was mixed by a compounding pharmacy, which critics say is an unreliable and unsafe source for the drugs.

"It's not necessarily about pentobarbital, it's about where are the ingredients coming from. Who is compounding the drug? Right now, all we know is that it's from a compounding pharmacy from out of state. That does not inspire confidence," says Hill's attorney Brian Kammer.

In its attempts to streamline the process of moving inmates from death row to the execution chamber, the state's new secrecy law instead thwarted its own efforts to execute Hill. It's helped the inmate live longer than anyone, even his lawyers, ever expected.

In addition, Georgia's adamant protection of its new statute has resulted in heightened scrutiny over its hypocritical stance on transparency. In some cases, the state likes to posture as a champion for transparency on behalf of the public. Case in point: Days before Hill was given his most recent stay, Olens browbeat the Environmental Protection Agency for allegedly failing to disclose documents, saying: "We deserve a government that conducts business in a transparent manner, especially when its actions have a direct impact on all of us."

But when it suits the state's own agenda, as in lethal injections, it's more than happy to use secrecy to carry out its mission. In this case, Georgia's actions indicate that the protection of pentobarbital suppliers has become more important than giving Hill, a citizen with rights, an unobstructed chance to defend himself.

The state's secrecy law, oddly enough, has helped Hill. Hours before Hill's scheduled July 15 execution date, Fulton County Superior Court Judge Gail Tusan granted him a temporary stay of execution after his lawyers raised concerns over the statute. Three days later, Tusan extended Hill's stay indefinitely and said the law might unconstitutionally limit access to information Hill and others would need to defend their rights in court. Thanks to an unexpected delay in the court transcript's delivery, the state was unable to hastily appeal Hill's indefinite stay before the execution warrant expired.

Looking ahead, the odds that Hill dies by lethal injection before September are dwindling by the minute, but are still possible. The state is still expected to challenge his indefinite stay of execution. The question is when. Georgia's Supreme Court will be in recess throughout August. Likewise, the Georgia Department of Corrections will need to obtain a new execution warrant and purchase more pentobarbital. Those tasks will be harder to do with an indefinite stay in place as well as more scrutiny and awareness about Georgia's secrecy law.

Moving forward, Hill's lawyers will fight for his life in two distinct legal battles. One will be the long-running Eighth Amendment case over the execution of "mentally retarded" inmates. The second focuses on the state's secretive stance toward lethal-injection drugs. The legal team already seems to be winning the latter fight, which could help buy Hill enough time to let the U.S. Supreme Court take a thorough look at his constitutional challenge in late September.

Ultimately, Kammer says, the fight over Hill's mental condition offers the better chance to save his life for good. But it's one that had previously hit a dead end before the state's secrecy law started to unravel.

In a way, Hill's executioners — the state lawmakers, the attorney general, and the Department of Corrections — gave his lawyers another shot at saving his life. If the courts ultimately continue to side with Hill, it'll be as much the state's doing as it is his legal team's expertise.

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