State executed one person during the period the records cover
Records released to a ProPublica reporter after a years-long legal fight show that the Georgia Department of Corrections has paid more than $1.1 million to at least one contractor working on the state’s lethal injection process since the COVID-19 pandemic. During that period, Georgia carried out just one execution.
The state’s Corrections Department has spent an average of more than $150,000 a year on lethal injection-related costs over the past decade — substantially more than the amounts it agreed to pay before 2017, according to the records.
Legal scholars said the costs reflect how difficult states have found it to staff lethal injections. “You wouldn’t have to pay this much money if the lethal injection process was an acceptable one,” Deborah Denno, a Fordham University law professor and death penalty expert, told ProPublica. “The process itself is so problematic that a lot of money has to be paid.”
Even after turning over the records, the Georgia Department of Corrections declined to answer questions about the rising costs and the secrecy surrounding lethal injections. The state attorney general’s office, which represented the department in the open-records lawsuit, also declined to comment. State officials have previously argued that the Lethal Injection Secrecy Act allows the Corrections Department to protect contractors who would otherwise “find themselves at the center of a firestorm of hate mail and midnight callers.” Officials have repeatedly maintained that, without the secrecy law, Georgia would be unable to carry out executions.
The records were released after a panel of three judges sided with the ProPublica reporter, who had sued the state under the Georgia Open Records Act. Georgia Attorney General Chris Carr, who defended the Corrections Department, wrote in a court filing that releasing the records “would not serve the interest of the public.” Even after the ruling, the names of the people involved with the lethal injection process remained redacted from the documents the state released.
The disclosures come as Georgia prepares to carry out its first execution in two years on September 16, after a Georgia Supreme Court ruling removed a barrier that had paused executions.
The state’s push for secrecy around its lethal injection process intensified in the early 2000s, when Georgia traded the electric chair for lethal injections. At the time, opponents of the death penalty were pressuring pharmaceutical companies to stop selling drugs to states for executions.
By the end of that decade, the campaign was working. The last U.S. factory making a key ingredient for lethal injections halted production, forcing states to scramble for new drug sources. Georgia purchased drugs from a wholesaler whose business operated out of the back room of a London driving school — a deal that unraveled in 2011 when the Drug Enforcement Administration seized the state’s supply of lethal injection drugs. The European Union, made up of countries that oppose the death penalty, subsequently banned companies from selling drugs to states for executions.
Facing shortages, Georgia became one of the first states in 2013 to turn to compounding pharmacists — who mix raw ingredients to make custom drugs for patients — for execution drugs. Although compounding pharmacies have legitimate uses, they are minimally regulated, and medical experts said the scant oversight increased the odds of a drug not working as intended.
In a 2013 affidavit filed on behalf of a Georgia prisoner, a pharmacy expert wrote that “highly unpredictable, rapidly evolving and potentially painful and agonizing, not to mention life-threatening, reactions may ensue” as the result of a lethal injection drug made by a compounding pharmacist.
Around the same time, Georgia lawmakers passed the Lethal Injection Secrecy Act. In a 2013 court hearing, an assistant state attorney general argued: “Once that compounding pharmacy’s identity is revealed, how will the Department of Corrections ever get another compounding pharmacy to sell to us? How will we get a doctor knowing that he is going to be, or she is going to be, dragged into court?”
Other states have similarly spent large sums on confidential contractors for lethal injections. Oklahoma increased its per-execution payment to a doctor from $300 to $15,000, and Texas, Indiana and Arizona have each spent six-figure sums to renew drug supplies from confidential sources. The American Civil Liberties Union found that the Federal Bureau of Prisons had spent millions on staffing needed to carry out executions.
The records obtained by ProPublica also show additional dimensions of Georgia’s protection of its contractors. The state is on the hook for attorneys’ fees for contractors facing certain kinds of legal challenges, including in “any non-judicial proceeding” — a category that could encompass, for example, a state licensing board threatening to punish medical providers for participating in executions, as North Carolina licensing authorities have done.
The records also suggest Georgia officials may have disregarded their own financial policies. While the Corrections Department requires detailed purchase orders logged in the state’s financial system, the records provided to ProPublica consisted of handwritten checks and a series of one-page documents with scant information about what the state was paying for — documents that, the reporter wrote, “hardly resembled the invoice of an official agency.”
When asked to provide purchasing records that complied with department policy, the Corrections Department’s lawyers replied in writing: “There are no other records.”