Secrecy and the Needle: Ohio's Scary New Lethal-Injection Policy

Instead of fixing a broken system, the state is seeking to shroud it.
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THe Southern Ohio Correctional Facility, where lethal injections are performed in the state. (Photo: American Prison System)

THe Southern Ohio Correctional Facility, where lethal injections are performed in the state. (Photo: American Prison System)

Since the rather brutal 26-minute execution of Dennis McGuire this past January, Ohio hasn't killed any of its death-row inmates—and not for lack of trying. In May, Gregory L. Frost, federal judge for the state's southern district, put a moratorium on lethal injection, the idea being that Ohio would clean up its drug protocols, rejiggered into a two-drug cocktail after the state's Department of Rehabilitation and Corrections ran out of European pentobarbital.

In August, Judge Frost extended the moratorium until January 15, and that's when lawmakers and operatives in the Attorney General's office started getting antsy. Ronald Phillips has been scheduled for execution on February 11, but the state has run out of drugs; meanwhile, the public is still asking questions: Will upping the midazolam dosage relative to hydromorphone really ensure a death free from cruel and unusual punishment? Will domestic pharmacies, emboldened by the assurance of anonymity and still unregulated by the Food and Drug Administration, start compounding pentobarbital once more? Do the administering physicians know what they're doing, and are they actual physicians? How can you trust a state that has flubbed four executions in the last eight years?

Obstruction and denial, a rush to kill and then a tight-lipped press conference: This has become the established political pattern in states where reigning lawmakers are bullish about the death penalty.

The answer is to provide no answers. Republican lawmakers, with the aggressive support of Attorney General Mike DeWine, are set to pass HB 663, a sweeping new secrecy law that would shield the names of compounding pharmacies, distributors, and medical “experts” present at executions. Not even the courts would have access to this information. Perhaps more daring, HB 663 voids certain contracts with European distributors who stopped selling death-drugs to American buyers in 2010 and 2011—specifically, the bill voids contractual caveats that block states from using European drugs to kill citizens. This last bit is pretty brazen: As the Guardianreports: “Should the bill make it into law, that provision is certain to be challenged in the courts as a potentially unconstitutional state intervention into commercial contracts.”

But then it's all pretty brazen. Instead of finding sounder lethal-injection protocols, Ohio is redoubling its commitment to opacity; instead of answering the hard questions about a shameful period in American capital punishment, the state is seeking to silence those questions wholesale.

Small wonder, then, that the bill's sponsors—and the office of the Attorney General—are quite close to a media blackout, even after the bill sped through committee and passed the house. (A vote in the senate is imminent.) State representative and assistant majority whip Jim Buchy (R) issued the following statement and promptly curled down behind it, offering no further comment to national media.

House Bill 663 is legislation that very narrowly focuses on specific issues relating to the death penalty by providing the necessary guiderails to ensure that lethal injections in the State of Ohio are done safely, responsibly and humanely. By issuing confidentiality pertaining to certain producers of lethal injection drugs, we are following recommendations made by Ohio’s attorney general to make certain that existing state law can be carried out and that it is done with the greatest of care. This issue is a complicated one and one that is important to the people of Ohio. As we move forward, we will continue to discuss with fellow legislators, the attorney general’s office and state agencies to implement the right solutions and to address concerns that have been brought before us.

Naturally, Buchy and his co-sponsor, House Speaker pro tempore Matt Huffman (R), don't need to sell the bill to the nation and have done no stumping for it among their constituents. (When I asked Huffman about the botchings, he delivered boilerplate, and more tepid than usual: "The time is right for reform on this issue as recent concerns have arisen regarding the repetition of problems in this area.") The less they talk about it in public, the better: more time to whip law-and-order votes before the bill hits the floor of the state senate—no later than December 17, so that Governor John Kasich can sign it before the new year. In public, both the Attorney General's office and Buchy's people deny that there is any railroading going on here, but my conversations with several Republican aides suggested that the Phillips execution on February 11 is a prime catalyst for the bill.

HB 663 now heads to the state senate, where republican Keith Faber, the president of that body, expresses quiet reservations about the Buchy-Huffman law. "My members are very concerned about making sure that we have transparency,” Faber has said, speaking for his caucus. “There's a lot of concern about shutting out public knowledge." We'll learn whether Faber's caucus has any real interest in transparency once the senate holds its vote. (There are also concerns that the new law would prompt a tide of new litigation, as it has in Arizona, Missouri, Pennsylvania, Texas, and elsewhere.)

In Arizona this July, at the mercy of the same cocktail currently administered in Ohio, Joseph Wood took two hours to die. Every journalist present said it was a horrific, agonizing affair, while Governor Jan Brewer was blithe in her dismissal of humanitarian concerns: “Inmate Wood died in a lawful manner, and by eyewitness and medical accounts he did not suffer,” she said. The state had naturally refused to disclose details about the chemical cocktail, or about the medical qualifications of the executioners. Obstruction and denial, a rush to kill and then a tight-lipped press conference: This has become the established political pattern in states where reigning lawmakers are bullish about the death penalty.

That scenario is too familiar and plenty scary already. The last thing we need right now is more secrecy behind the needle.

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