Appeals court upholds Ohio plan to shield execution-drug makers' identities

11/2/2016

COLUMBUS — A Cincinnati appeals court today threw out challenges to an Ohio law that promised to shield the identities of some of those involved in the execution process, including pharmacies that manufactured the drugs.

In a 2-1 decision, the U.S. 6th Circuit Court of Appeals upheld the dismissal of claims made by several death row inmates that the process conceals information from the public record in violation of their constitutional rights.

The majority agreed that the death row inmates lacked standing to sue because they could not show they’d been denied information to which they claim they have a free-speech and public record right.

“The plaintiffs have not satisfied the injury-in-fact requirement,” Judge Eugene Siler, Jr. wrote for the majority. “In their complaint, they claimed that (House Bill) 663 ‘chills the speech of those participants or former participants in Ohio lethal injection executions’ who might have to disapprove of the death penalty.

“Whether or not this is the case, it constitutes only an allegation of a subjective chill, which is insufficient to satisfy (the constitutional requirement for standing to sue),” he wrote.

Ohio last executed an inmate in January, 2014 when Dennis McGuire, of Montgomery County, was put to death using a two-drug process that it has since abandoned. McGuire died, but witnesses described him as making choking noises and struggling against his restraints for 26 minutes after the drugs began to flow.

Between a federal court order and subsequent decisions by Gov. John Kasich, Ohio has had an informal moratorium in place on carrying out executions in place since then.

That is about to expire at the end of the year, and Ohio plans to execute Ronald R. Phillips, formerly of Akron, on Jan. 12 using a revised process involving an intravenous combination of fairly common drugs—midazolam, an anti-anxiety medication; rocuronium bromide, a paralytic agent, and finally potassium chloride, designed to stop the heart.

After the McGuire execution, Ohio struggled to find the drugs it preferred to use because their domestic and overseas manufacturers refused to make them available for executions.

As part of its effort to access the drugs, the General Assembly passed House Bill 663 which, among other things, dangled the promise of at least temporary anonymity for compounding pharmacies that would agree to make the drugs from scratch for the state.

The law also would shield the identities of certain individuals directly involved in the execution process from the public record.

In her dissent, Judge Jane B. Stranch described McGuire’s death as “this horrifying tale of an execution gone wrong.”

She argued that the majority’s ruling prohibits condemned inmates from accessing information that may be necessary to prevent the carrying out of an execution that unconstitutionally imposes cruel and unusual punishment.

“Death penalty cases are not just about punishing a convicted person,” she wrote. “These cases are also about protecting the functioning of our justice system, which…envisions a forum for addressing the claims made in this litigation, and perhaps other litigation over state lethal injection laws.”

Contact Jim Provance at: jprovance@theblade.com or 614-221-0496.