- Four death-row inmates sue to stop law that shields names of all associated
- Lawyer calls secrecy legislation ‘a clear violation’ of first amendment rights
The Guardian, Jessica Glenza in New York, 20 January 2015
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| Execution chamber at the Texas Department of Criminal Justice Huntsville Unit in Huntsville, Texas. Photograph: AFP/Paul Buck/EPA |
Opponents
of an Ohio law that grants anonymity to nearly everyone involved in executing
prisoners say the law infringes on the public’s first amendment rights.
Attorneys also point to a lack of similar protection for those who carry out
other controversial procedures, such as abortion and stem cell research.
Four death
row inmates are suing Ohio to stop a law, passed in November’s lame duck
legislature, which made the names of doctors, employees, contractors and
compounding pharmacies involved in executions secret, immune even from a
subpoena.
The
legislation exempts such information from the state’s open-records laws, and
means people who reveal names of those involved in executions can be sued and
subject to punitive fines. It is scheduled to take effect in March.
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| Supreme court rules Missouri prisoner's death penalty appeal should be heard (Read more) |
“Ohio’s new
secrecy law is specifically designed to foreclose only one side of this debate,
which is a clear violation of the public’s first amendment rights,” said
Timothy F Sweeney, a lawyer for one the four death row prisoners.
“Constitutional
protections are most needed precisely when the government begins to limit the
ability of its citizens to question, speak, or inquire freely into its
workings, and that is certainly the case here.”
One of the
arguments lawyers have made against the secrecy law is that doctors involved in
areas of similar public policy debate have never enjoyed such protection.
“Those who
perform abortions or those who engage in stem cell research, for example, also
face intense directed speech from citizens in opposition to their activities,”
the motion filed by the prisoners reads.
“If such be
‘harassment’, they are exposed to levels of that purported ‘harm’ that are
magnitudes greater than what those shielded by [state bill] HB 663 would ever
face or even imagine.”
The Ohio
law is one of several attempts by death penalty states to keep proceedings
secret. Not all have taken the statutory route – Texas, for example, has
through regulatory action refused to release information about where it has
sourced drugs used in lethal injections. Such drugs have been in short supply
since European pharmaceutical companies began refusing to sell drugs for use in
executions.
“We’re
looking at the broader issues of our democracy and our constitution,” said
Richard Dieter, executive director of the Death Penalty Information Center.
“And, in that light, the decisions are going to start coming down differently.”
Dieter said
he believed Ohio’s law could be a candidate for judicial testing because of its
broad public disclosure exemptions, which exclude even courts in most cases.
“Courts are
going to recognize that this is controversial – that’s exactly where you need
information,” he said. “There’ll be some people who don’t want that exposure,
but that’s part of a democracy. You do have to take responsibility for your
action.”
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| Doctor angry Ohio executed inmate despite 'horror' warning (Read more) |
Ohio has
faced pressure to reform its lethal injection procedures since the January 2014
execution of Dennis McGuire. McGuire’s death took more than 20 minutes, during
which he gasped for breath and attempted to sit up. The 53-year-old’s gruesome
death was predicted by a Harvard professor of anesthesiology.
The doctor
told Judge Gregory Frost in a nine-page declaration that the state’s
experimental two-drug cocktail of midazolam and hydromorphone would not be
enough to kill McGuire without causing him undue harm. States are required to
perform executions without inflicting excess pain, part of the constitutional
ban on cruel and unusual punishment.
The botched
execution of McGuire led to a court-imposed moratorium on the death penalty in
Ohio until February 2015. Judge Frost is also hearing the lawsuit to stop Ohio
from keeping secret details about how it administers the death penalty.
According
to the state bill, HB 663, Ohio needed to make secret the names of small
compounding pharmacies that make the drugs for executions in order to protect
them from “physical harm” and “harassment”. The law would also bar medical
licensing boards from sanctioning doctors who take part in executions.
States have
sought to shield manufacturers of the drugs used in lethal injections since
public scrutiny pushed makers to stop selling such drugs for executions. The
lack of companies willing to supply execution drugs has led to a drug shortage,
forcing some states to use untested lethal injection combinations, such as in
McGuire’s execution.
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