A Louisiana Senate panel shot down a bid to cloak the source of execution drugs in strict secrecy, a proposal framed as a way to restart executions in the state.
But critics called it an attack on transparency, arguing it'd potentially allow state prison officials to buy execution drugs from shady sources without any outside oversight and make it extremely difficult to hold suppliers accountable if improperly mixed drugs caused a botched execution.
The bill's death on a 3-to-2 vote in the Senate Judiciary B Committee likely ends debate over the death penalty in this year's legislative session without any changes to the current situation. Two separate proposals to abolish capital punishment both failed earlier in the session.
Louisiana hasn't carried out an execution since 2010. State prison officials have struggled in recent years to obtain the drugs needed for lethal injections, the only form of execution allowed under state law.
State Rep. Nicholas Muscarello, R-Hammond, argued that his secrecy proposal, House Bill 258, might allow the state to buy drugs from small specialty manufacturers that may be reluctant to face public scrutiny or possible protests if their involvement in executions was revealed. His bill would've provided "absolute confidentiality" for any company or person involved in supplying execution drugs or equipment. Contracts, emails or other documents that might identify companies would've been shielded from public records requests and exempt from being turned over in lawsuits or court proceedings.
The House of Representatives passed the bill last week, 68 to 31.
Large pharmaceutical companies, which make the drugs needed for lethal injections, have refused to sell them for use in executions and have taken steps in recent years to cut off the supply to prison death chambers. That's left death penalty states scrambling to obtain drugs necessary for executions. Louisiana prison officials have tried other avenues to obtain drugs.
Eighteen other states have passed similar secrecy measures, including several who've successfully carried out lethal injections in recent years, said Michelle Ghetti, who works for Louisiana Attorney General Jeff Landry as the state's deputy solicitor general.
Landry, a Republican, has trumpeted his support for the death penalty and backed Muscarello's proposal. Landry urged lawmakers before the session to push such a secrecy bill as part of a campaign to begin executing death row inmates again.
Records obtained by The Advocate through a public records request show the state’s most recent supply of any of the drugs used in executions had expired by 2016. A number of death-row inmates have challenged Louisiana's lethal injection protocol in an ongoing federal lawsuit. Attorneys for the inmates have sought information about possible suppliers and manufacturers of executions drugs.
Federal judges in the case have issued a series of orders that have blocked Louisiana from carrying out any executions since 2014. The most recent extension of that order, which is set to expire in July, was requested by state officials after acknowledging the state didn't have the drugs to move forward with any executions.
Current Louisiana law already provides confidentiality for most people involved in lethal executions, including those who "perform ancillary functions ... either directly or indirectly."
The Department of Corrections cited that law when blacked out large portions of email correspondence with a compounding pharmacy and a proposed non-disclosure agreement in response to a public records request from The Advocate.
But Muscarello's law would've gone further, its backers argued, by specifically guaranteeing confidentiality to drug makers and suppliers. It also would've sought to prohibit federal judges from ordering the state to turn over records related to its acquisition of execution drugs.
Death penalty supporters urged lawmakers to pass the bill, arguing the state made a promise to families of those killed by those on death row to carry out their death sentences. They expressed frustration with a seemingly endless wait for executions.
"There is no such thing as closure, all we’re asking you for is justice," said Wayne Guzzardo, whose daughter was murdered during a 1995 restaurant robbery in Baton Rouge by a man on death row.
Guzzardo — accompanied Tuesday by his wife, who carried a framed photo of their slain daughter, Stephanie — has become a regular and adamant pro-death penalty voice in the State Capitol. "This has gone on long enough," Guzzardo said.
Opponents of the bill — including the Louisiana Conference of Catholic Bishops, anti-death penalty groups and the Louisiana Press Association — said the total secrecy it'd impose on the purchase of execution drugs would open the door for all sorts of potential problems.
They argued that prison officials could potentially head across state lines to buy from disreputable or unqualified compounders, pay wildly inflated prices to cronies or even turn to the black market to buy deadly drugs.
"Any shady means of acquiring these drugs would be permissible" if the law passed, said Rob Tasman, the executive director of the Louisiana Conference of Catholic Bishops.
Several opponents pointed to Landry's own public suggestion that prison officials could take seized black-market fentanyl — an extremely powerful opioid painkiller blamed for a spike in fatal overdoses — from police evidence lockers to kill condemned prisoners.
Although many of the groups fighting the execution secrecy proposal have also pushed to end the death penalty — such as the Catholic Church — they said their opposition to Muscarello's bill hinged more on issues of transparency, accountability and open government.
"The public has a right to know how its tax dollars are being spent," said Nicholas Mitchell, a researcher at Loyola University in New Orleans who's repeatedly testified at the State Capitol against the death penalty. "It is especially true regarding something as serious as capital punishment."
"We’re not here about the death penalty, that’s not what this is about," said Kevin Hayes, a lobbyist for the Louisiana Press Association, which represents newspapers in the state, including The Advocate. The group regularly opposes legislation that'd hide public records or government functions and came out against Muscarello's bill.
"Whatever one feels about capital punishment, the public has a right to know how those convicted of heinous crimes are being put to death," Hayes said. "Doing this controversial work in secret is not a gesture of democracy."
Muscarello, though, argued that secrecy around execution drugs has become essential for Louisiana to actually carry out death sentences. Lawmakers and the general public would need to trust state Department of Corrections officials are operating responsibly and above board in sourcing the drugs, he said.
"We have to make sure that whoever we have running DOC will do the right job," Muscarello said. "I think our DOC will run it correctly, they’ll hire the right people and do the right job."
State Sen. JP Morrell, D-New Orleans, also contended it'd leave state taxpayers on the hook for potential multi-million-dollar lawsuits if shoddy work or mistakes by drugmakers caused horrific botched executions since the state couldn't reveal the company responsible.
Muscarello said possible legal liability is something the state should be prepared to accept, likening the risk of a costly lawsuit over a botched execution to potential payouts for car wrecks caused by on-duty state employees.
A frustrated Muscarello after Tuesday's vote that he or another supporter would push a similar execution drug secrecy bill in the Louisiana Legislature again next year.
Advocate staff writer Della Hasselle contributed to this report.