Problems outweigh need for speed on execution secrecy law

Editor’s note: ONA Executive Director Dennis Hetzel wrote this column for the Plain Dealer and on House Bill 663, which would add more secrecy to Ohio’s lethal injection executions. The Ohio Senate made further improvements in the bill, but ONA continues to oppose it becoming law. At this writing, the bill has passed the Legislature and awaits Gov. John Kasich’s decision to sign or veto. By Dennis Hetzel

The State of Ohio botched its last execution. The convicted killer struggled for nearly 25 minutes before finally succumbing. Officials attributed it to the difficulty in obtaining the drug "cocktail" needed – drugs that few companies want to sell for executions in response to public pressure, their own beliefs or mandates from their governments overseas. Other states face similar problems and related lawsuits.

The answer to the problem, according to some Ohio legislators and Attorney General Mike DeWine, is more secrecy.

As introduced, House Bill 663 offered anonymity and immunity to all the key players. The names of drug suppliers were secret forever. Even the courts were blocked from obtaining information through subpoena or discovery. Businesses were restricted from the kinds of contracts they could sign with other businesses. The bill inserted government into the relationship between physicians and their professional organizations.

The latest version, which has passed the House and is in the Ohio Senate, is better, and we appreciate the bipartisan effort to improve it. Judges could see this information in some circumstances. Records would eventually become public – in 20 years. Lawmakers also narrowed broad language that invited the courts to find fresh restrictions on access to information. However, major issues remain.

The fundamental problem may be the lethal injection method itself. In essence, the state must coerce private-sector companies to do something they apparently don't want to do, or are saying they won't do unless they receive anonymity. Companies say they face significant harassment and threats, but Ohio has laws to prosecute legitimate threats and harassment. We haven't seen evidence of this need for special protection. Only extreme circumstances should restrict your right to protest or limit your access to basic information about businesses that do controversial things with taxpayer dollars.

Testimony in the House made it clear that this bill will spawn new, expensive litigation, and witnesses demonstrated that there is no way for the state to guarantee total anonymity to a drug company or pharmacy. For one thing, many claims will occur at the federal level. Constitutional challenges remain. Interference by the Legislature with court procedures, the medical profession and private sector contracts isn't resolved.

Given these issues, it's reasonable to ask whether this bill is appropriate for the fast track in the closing weeks of a two-year legislative session.

Supporters say the matter is urgent, because executions can't occur in Ohio until this gets resolved. Meanwhile, there has been no consideration of the recommendations of the Ohio Supreme Court Death Penalty Task Force that have been available since April. The argument that the victims of these awful crimes deserve swifter closure is an important one but not a compelling reason to pass a problematic bill. Perhaps legislators can wait a little longer to make sure they craft a good law.

Ohio has an important tradition of an execution process that is quite transparent. This is consistent with our public records law and supported by numerous court decisions that say records must be open with rare exceptions drawn as narrowly as possible.

Everyone should embrace that notion, particularly when the "problem" to resolve is the best process for the state to end human lives. House Bill 663 is highly unlikely to make the execution process faster and more humane, but it unquestionably will make it harder for citizens to hold government accountable for its actions.

Additional Coverage of Execution Secrecy Bill