Ohio Death-Drug Suppliers Will Remain Anonymous

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By Lance J. Rogers

Nov. 7 — An Ohio law shielding the identities of lethal-injection drug suppliers doesn’t violate the free-speech rights of death-row prisoners, a divided U.S. Court of Appeals for the Sixth Circuit ruled Nov. 2 ( Phillips v. DeWine , 2016 BL 365693, 6th Cir., No. 15-3238, 11/2/16 ).

The Eighth Circuit last month upheld a similar confidentiality law passed in Missouri.

The decisions make it more difficult for inmates facing execution by lethal injection to meet their burden of proving that the procedure violates the Eighth Amendment’s ban on cruel and unusual punishment.

Free Speech Challenge

The court shot down the the three inmates’ claim that Ohio Rev. Code § 149.43 conceals information that would better inform the public debate about capital punishment.

For one thing, the inmates don’t have standing to bring a free speech challenge because the confidentiality law doesn’t suppress their right to speak, the court said in an opinion by Judge Eugene E. Siler Jr. The statute merely blocks them from securing information from the government.

Their related public-right-of-access claim likewise fails because that right doesn’t extend to every bit of information that conceivably relates to a governmental proceeding, even if the official proceeding is itself open to the public, the court said.

“While a deficient execution is a very serious matter, the existence of deficiencies in this case is only conjectural or hypothetical,” the court added.

Judge Alan E. Norris joined Siler’s opinion.

Judge Jane B. Stranch dissented, arguing that the First Amendment protects not only the right to speak but also the corollary right to receive information and ideas.

Ohio’s executions have been on hold since the grisly lethal-injection execution of Dennis McGuire in 2014, which reportedly left him choking and gasping for 25 minutes before he finally died.

“This horrifying tale of an execution gone wrong underscores what is at stake in this litigation.” Stranch wrote.

Timothy F. Sweeney, Cleveland, argued on behalf of the inmates. The Ohio Attorney General’s Office, Columbus, Ohio represented the state.

To contact the reporter on this story: Lance J. Rogers in Washington at LRogers@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

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