COLUMBUS — The governor’s signature had just enough time to dry before a lawsuit was filed challenging a new law to shield the identity of the makers of Ohio’s execution drugs and others involved in the process.
The federal suit was filed late Tuesday by four death row inmates, including Grady L. Brinkley, who was convicted in the 2000 shooting of his 18-year-old Toledo girlfriend, Shantae Smith.
Other plaintiffs include Ronald Phillips, of Summit County, whose execution is set for Feb. 11; Raymond Tibbetts, of Hamilton County, set to die on March 12, and Robert Van Hook, also of Hamilton County, who has a Nov. 17 execution date. The Ohio Supreme Court has not set a date for Brinkley.
The suit argues that House Bill 663, signed by Gov. John Kasich on Friday, violates the First Amendment rights of the death row inmates by offering at least temporary anonymity to a compounding pharmacy that agrees to manufacture the state’s preferred execution drug and permanent anonymity to most of the rest of the execution team.
The suit names Mr. Kasich as defendant along with Attorney General Mike DeWine, Department of Rehabilitation and Correction Director Gary Mohr, and Southern Ohio Correctional Facility Warden Donald Morgan.
The Southern Ohio prison in Lucasville is where Ohio’s lethal injection chamber is located.
The law’s supporters have argued that is necessary if Ohio is to resume carrying out capital punishment after the problematic execution of Dennis McGuire, of Montgomery County, nearly a year ago.
Ohio couldn’t get its preferred drug, the powerful sedative pentobarbital, because its European commercial manufacturer refused to make it available for executions.
The state fell back on Plan B, overdoses of midazolam, a barbiturate, and hydromorphone, a painkiller. Witnesses described McGuire as struggling against his restraints and making choking sounds for 26 minutes after the drugs began to flow.
Similar problems were experienced in other states using that method.
“…rather than permit public debate about the death penalty to continue its current course, which has become increasingly critical of the government’s actions, Ohio and certain other death penalty states have chosen to cut off the very information fueling that debate,” said Cleveland attorney Timothy F. Sweeney, whose firm filed the suit in U.S. District Court in Columbus.
“These laws violate some of the most basic principles upon which our democracy was founded,” he said. “Everyone should be deeply troubled by this bold piece of legislation which has been passed to artificially reduce public criticism of government actions in one of the most important areas in which it acts — the taking of a human life.”
In addition to the First Amendment argument and the penalties associated with releasing what is supposed to be sealed information, the suit challenges the law’s intrusion into the medical disciplinary and licensing process as it pertains to those who might be involved in the execution process as well as court access to the information.
Mr. Sweeney called the law “Orwellian.”
Phillips’ Feb. 11 lethal injection would be the first carried out in Ohio since McGuire’s execution, assuming a current federal court moratorium expires as scheduled.
House Bill 663, sponsored by Reps. Matt Huffman (R., Lima) and Jim Buchy (R., Greenville), would allow a compounding pharmacy supplying execution drugs to ask for its identity to be sealed for 20 years after it ceases doing business with the state.
The identities of most of the others on the execution team would be sealed in perpetuity.
The law has a 2-year expiration date, after which a pharmacy entering into an agreement with the state may not be guaranteed such protections. A special legislative committee is to meet in the interim to make recommendations for a new law to replace House Bill 663.
First Published December 24, 2014, 2:27 p.m.
