Update, 12/15: The state Senate last week approved the measure after adding a two-year expiration date to the bill and sent it back to the Ohio House for a final vote this week. Even as the legislative maneuvering continues, prosecutors say they do not expect the state’s next planned execution, in February, to proceed on schedule.
Original article appears below.
During the past decade, the State of Ohio hasn’t exactly been the smoothest operator when it comes to carrying out the execution of death-row inmates. Earlier this year, a much-publicized Buckeye State execution left one inmate choking and snorting for 26 minutes before his death. It was Ohio’s fourth botched execution since 2006, according to the American Civil Liberties Union.
Meanwhile, lethal injection drugs have become harder to come by, and supplies are drying up in several states. European companies that used to provide those drugs have stopped doing so in protest to capital punishment. Stateside, the US companies that make and sell compound pharmaceuticals have come in for scrutiny. Ohio is now under a federal court order not to execute anyone until next year, as it works on a new procedure for carrying out lethal injections.
All of which is the set-up for the debate now playing out in the Ohio legislature over what’s been called the nation’s most extreme “secret executions” bill, as lawmakers consider a proposal to restrict access to information about how the death penalty is carried out. It’s a debate that pits media organizations, other transparency advocates, and religious and medical groups against the law enforcement lobby. The Ohio House has passed the bill, and a Senate committee narrowed it a bit Wednesday. The Senate committee has scheduled a vote on whether to advance the final bill today.
Calling Ohio’s measure the nation’s “most extreme”—though it has been softened a bit since then—is really saying something. CJR has written previously about the wave of new secrecy provisions surrounding lethal injection procedures in other states like Missouri and Oklahoma, which have led to big legal battles. Just this week, a judge in Oklahoma ordered that thousands of documents related to a botched April execution will remain under seal. (Our press freedom correspondent, Jonathan Peters, who is working with the ACLU in Ohio to oppose the measure there, has also laid out the First Amendment argument against death penalty secrecy laws.)
Much of the state legislation has been aimed at hiding the identities of those involved with executions—and, crucially, the makers of drugs, typically small compounding pharmacies, used to carry them out. Supporters of the measure argue the law is necessary to protect the identities of people who help carry out the death penalty, and it’s needed quickly so the state can get out from under its court order and resume executions—that’s why the bill has been put on a fast track in a lame-duck session
The proposed law would allow compounding pharmacies the ability, should they want it, to remain anonymous for 20 years; it also protects physicians who testify about the state’s execution method from having their state medical license revoked. Under the law, if the identity of an execution team member is exposed, that person could file civil charges against whoever does the exposing. That provision goes for people who make, import, transport, supply, prescribe, administer, test, or “use” a lethal injection compound. About a dozen other states have proposed similar laws seeking to shield from public view the identity of lethal drugs or those who carry out their intent.
Pushing back against the proposal is an eclectic coalition that includes the national and regional chapters of the Society for Professional Journalists, the ACLU, the Catholic Conference, and the Council of Churches. Backing the bill are the state attorney general, prosecutors, and prison officials.
The op-ed page of Sunday’s Plain Dealer pitted a Republican House member named Jim Buchy, who sponsored the bill, against the head of the Ohio Newspaper Association, Dennis Hetzel, who took up the case against it.
His issue with the bill isn’t about the death penalty, Hetzel told me, but about transparency and open government.
“We have an open records law that, presumptively, records are supposed to be open and exemptions are supposed to be narrow and rare,” he says. “And now we’re going to be [adding exemptions] in our open records law. … We’re just destroying our open records law by a death by a thousand cuts. And so this is another example where that importance of openness just takes a backseat to business interests.”
It should be noted that the Ohio bill looked worse on the transparency front than it does now, as the Senate takes it up. Under the original version, courts would have been banned from ever finding out the name of a drug company that supplied a compound used in executions, whether by discovery, subpoena, or any other legal fact-finding method. In other words, if the state botched another execution, and a drug cocktail might have been to blame, good luck finding that out.
“It was breathtakingly sweeping in terms of the restriction on the courts,” Hetzel says. The version the Senate will take up now allows a judge to review the evidence behind closed doors with the possibility of disclosure. But, Hetzel and his allies say, that’s still a long way from open and transparent government—especially when you’re talking about life and death.
Corey Hutchins is CJR’s correspondent based in Colorado, where he teaches journalism at Colorado College. A former alt-weekly reporter in South Carolina, he was twice named journalist of the year in the weekly division by the SC Press Association. Hutchins writes about politics and media for the Colorado Independent and worked on the State Integrity Investigation at the Center for Public Integrity; he has contributed to Slate, The Nation, the Washington Post, and others. Follow him on Twitter @coreyhutchins or email him at coreyhutchins@gmail.com.