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The General Assembly didn’t see it coming?

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They didn’t see it coming, or maybe they just didn’t care. In their haste to pass a bill that would permit compounding pharmacies to manufacture in secrecy the drugs necessary to continue Ohio’s death penalty, the state’s legislators opened up the state to more litigation.

The legislators were in a hurry.  On August 11, 2014, U.S. District Court Judge Gregory Frost ordered a moratorium on Ohio executions until the state developed a new drug protocol. The moratorium was in response to the execution of Dennis McGuire on January 16, 2014, who appeared to writhe in pain after being injected with a new mixture of drugs. The state had until January 15, 2015, to develop a new protocol.

What to do?  Pass a bill in record time that makes a substantial part of the execution process confidential. Introduced on November 10, 2014, the bill was signed into law on December 19, 2014, and from the day it was introduced, the bill was criticized for its constitutional problems. But no one listened. Just four days later, the bill was attacked on constitutional grounds.  Four Death Row inmates filed suit in federal court. The case will be decided by Frost.

The drug that had previously been used for executions, pentobarbital, is used primarily in medicine as a sedative. Earlier in 2014, the manufacturers decided they no longer wanted it to be used for executions. Ohio switched to a mixture of midazolam, a sedative, and hydromorphone, a pain killer, which was used on McGuire. The combination didn’t work well.

Feeling it was out of options, the General Assembly decided it had to hire compounding pharmacies to create a drug similar to pentobarbital. That, in and of itself, was okay, but then the General Assembly got the idea it had to wrap the process in secrecy, and that’s where the General Assembly went wrong.

The new law makes confidential the identities of the companies involved in making the new lethal injection drugs. The law also prohibits licensing authorities from disciplining any doctor or pharmacist, etc. for participating in executions, and precludes all records related to executions from being made public.

The lawyers representing the Death Row inmates have taken an interesting approach.  Much of their attack is based on the First Amendment and freedom of speech. They assert that the secrecy component of the law is designed to suppress the voices of death penalty opponents, shield the compounding pharmacies from criticism, and prevent Death Row inmates from challenging the state’s death protocol.

Part of the plaintiffs’ proof will likely be the lack of evidence that exists for passing the law. There was much talk during legislative hearings about compounding pharmacies needing confidentiality because of threats of physical harm and harassment.  I attended a Senate hearing and heard senators talk anecdotally about these things, but no one with first-hand knowledge testified about actual harm or harassment. The plaintiffs contend the absence of supporting facts for the law evidences that its real purpose is to suppress free speech.

Whether or not the legislators were actually trying to suppress the voices of death penalty opponents, there seems to be little basis for the confidentiality requirements. If the court can’t find evidence of an important government reason behind the confidentiality requirements, the law could be held to be unconstitutional.

Besides the federal lawsuit, what else could have gone wrong for the General Assembly?  Gov. John Kasich’s administration announced on January 30 that the state would not conduct any executions in 2015.  That great flurry of activity during the lame duck session was for naught.

Three of the plaintiffs in the lawsuit challenging HB 663 have been on Death Row since at least 1998. Now, it will be at least another year until they are executed, if they are executed even then. Had they been awarded life without parole, their appeals process would have ended about two years after their sentencing, and these men would no longer be an issue.  The only thing H.B. 663 accomplished was that the state is now spending even more time and money on death penalty litigation.

Why is it the General Assembly felt so compelled to hurry so much? The death penalty captures so much time and energy when we have so many other problems in Ohio. Ohio’s infant mortality rate is fourth from the worst in the nation.  Along with Colorado and West Virginia, Ohio’s vaccination rate for measles, mumps and rubella is the lowest in the nation.  Ohio’s high school graduation rate  is tied for 23rd in the nation.

Once upon a time I worked for a Marine Corps colonel. What the General Assembly did with the new law reminds me of what the colonel would say about rushed projects: “You want it bad. You get it bad.”

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Jack D’Aurora writes for considerthisbyjd.com

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Discussion

  1. Bruce Lackey  February 9, 2015

    Eliminate the Death Penalty altogether. Next problem.

    (reply)
    • jdaurora@behallaw.com  February 9, 2015

      There’s something to be said for being concise.

      (reply)

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