Georgia is spending more on lethal injections than in the past, a pattern that legal experts say reflects the difficulties of obtaining execution drugs and the state’s effort to keep those details secret. The state’s Corrections Department has spent an average of over $150,000 a year on lethal injection-related costs during the past decade, according to records obtained through a lawsuit.
This figure is substantially higher than what Georgia paid in the years before 2017. The records also reveal that since the start of the COVID-19 pandemic, the state has made payments of more than $1.1 million to at least one contractor for work related to the execution process. Despite this significant expenditure, Georgia carried out just a single execution during that period.
A History of Secrecy
Georgia’s spending habits are part of a broader trend where states pay high sums to keep lethal injections running. Oklahoma, for example, increased a doctor’s fee for an execution from $300 to $15,000. The American Civil Liberties Union also found that the Federal Bureau of Prisons spent millions on staffing for executions. In Georgia, the Corrections Department has spent an average of over $150,000 a year on these costs for the past decade, which is substantially more than what it agreed to pay in the years before 2017.
The state has gone to great lengths to hide the details around how it carries out lethal injections, often invoking a law that allows it to shield contractors from harassment. “You wouldn’t have to pay this much money if the lethal injection process was an acceptable one,” said Deborah Denno, a Fordham University law professor and death penalty expert. “The process itself is so problematic that a lot of money has to be paid.”
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State officials previously said 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.” They have repeatedly argued that without the secrecy law in place, Georgia wouldn’t be able to carry out lethal injections. The state attorney general’s office, which has represented the department in the lawsuit, declined to comment for this story. Even after releasing some of the records, the department declined to answer questions about the rising costs and the secrecy.
How the State Got Here
It wasn’t long after Georgia traded the electric chair for lethal injections in the early 2000s that the state ratcheted up its secrecy. That’s when opponents of the death penalty increased pressure on pharmaceutical companies to stop selling lethal injection drugs to states. By the end of that decade, the campaign started to work. The last U.S. factory to make a key ingredient for lethal injections stopped doing so.
States across the country scrambled to find new sources of the drugs. Georgia purchased drugs from a wholesaler whose business operated out of the back room of a London driving school. That arrangement backfired when the Drug Enforcement Administration seized the state’s supply in 2011. Soon after, the European Union effectively banned companies from selling drugs to states if they were going to use them for executions.
Faced with shortages, states turned to compounding pharmacists, who mix raw ingredients to make custom drugs. Although these pharmacies have legitimate uses, they are minimally regulated and their costs can be exorbitant. As Georgia’s supply was set to expire in 2013, it became one of the first states to place an order with compounding pharmacists. Medical experts say that scant oversight of these pharmacies increased the odds of a drug not working as intended.
In a 2013 affidavit filed on behalf of a Georgia prisoner, one 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. At that time, Georgia lawmakers passed the Lethal Injection Secrecy Act. State prosecutors soon defended it in court. “Once that compounding pharmacy’s identity is revealed, how will the Department of Corrections ever get another compounding pharmacy to sell to us?” an assistant state attorney general said in a 2013 court hearing. “How will we get a doctor knowing that he is going to be, or she is going to be, dragged into court?”
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Legal Battles and Hidden Costs
When the reporter first requested records about Georgia’s lethal injections, the Corrections Department withheld entire documents that had “identifying information” about those involved with the process. The department refused to comply with the Georgia Open Records Act, and the reporter sued. Georgia Attorney General Chris Carr, who defended the department, wrote in a court filing that releasing the records “would not serve the interest of the public.” A panel of judges eventually sided with the reporter, and the state released the documents with names redacted.
The records show that Georgia is on the hook for attorney’s fees for its contractors should they face certain kinds of legal challenges. That means taxpayers could shoulder the costs of legal representation in “any non-judicial proceeding.” One such example could be if a licensing board threatened to punish medical providers for participating in the lethal injection process — a threat that’s happened in North Carolina.
Georgia officials may have also disregarded their own financial policies. The Corrections Department requires detailed purchase orders to be kept and logged in the state’s financial system. However, the department’s lawyers could only provide handwritten checks and a series of one-page documents containing scant information about what the state was paying for. These documents hardly resembled the invoice of an official agency.
The department’s lawyer eventually wrote that “there are no other records.” The secrets of Georgia’s death penalty process could face scrutiny in the coming days. After a recent Georgia Supreme Court ruling removed a barrier that had paused executions, state officials scheduled an execution for Sept. 16, which would be its first in two years. For every new scheduled execution, a new set of questions about the people behind the injections is likely to emerge.