A federal trial judge in Ohio earlier this week dismissed an important lawsuit challenging the state’s broad new lethal injection secrecy law. That’s the bad news. The even worse news is the scope of the judge’s ruling, his rationale in rejecting the First Amendment implications of the case, and what the order presages for continuing nationwide litigation over state laws that are designed to shield from public view the dirty business by which executioners gather and use lethal drugs on condemned prisoners.
There won’t be any executions in Ohio until 2016 at the earliest. But Tuesday’s order by U.S. District Judge Gregory L. Frost, an appointee of President George W. Bush, buttresses the dubious, dangerous legal precedent upon which the current iteration of lethal injection secrecy laws has been built. Take Ohio, for example. The botched execution of Dennis McGuire in Ohio in January 2014 should have caused lawmakers and prison officials to be more transparent in shaping their execution protocols to avoid causing undue pain and suffering to the condemned.
Instead, Ohio went in the other direction, moving swiftly to ensure that the injection protocols it will use can never be independently evaluated before a prisoner is killed, no matter how cruel and unusual is his death. The new state law, one of the most restrictive in the nation, was passed late last year at the behest of the corrections industry. It shields from public disclosure critical information about where state officials have obtained the drugs they wish to use in executions—drugs now supplied by shadowy compounding pharmacies that only recently became subject to some federal regulation. And now it has a federal judge’s seal of approval.
Judge Frost first ruled that the plaintiffs, four death row inmates who will likely be executed without ever knowing basic information about the drugs to be used to kill them, did not have “standing” to bring their claims against Ohio officials. Their concerns, the judge ruled, were “based on conjectural or hypothetical injuries…” Next the judge rejected the first amendment claims of the prisoners. “The question here,” he wrote, “is not whether any of the information at issue should be made available to the public by Ohio’s state actors, but whether the First Amendment compels such disclosure in this particular context.”
Ohio’s secrecy law, the judge then declared, is “a permissible limitation on the right of access enacted by the representatives of Ohio’s citizens… a specific result of the democratic process” that ”sits beyond invalidation by the First Amendment and interference by the courts…” This rationale, an explicit abdication of the judicial role in protecting individual rights under the Bill of Rights, allowed Judge Frost to dismiss the final part of the plaintiffs’ case—their claim that the Ohio law created a Catch-22 that would forever preclude them from raising even legitimate claims under the Eighth Amendment. Here now are the remarkable passages in which Judge Frost justified his ruling:
In execution protocol challenges, the law tells death-sentenced inmates to bring evidence into the courtroom while concurrently upholding a scheme that places the bulk of select evidence outside the reach of the inmates. The necessary is also the withheld: you must give us that which you cannot have to give. In order to challenge the use of a drug that will be used to execute them, inmates must explain why use of that drug presents a risk of substantial harm. But the inmates are not allowed to know from where the drug came, how specifically it was manufactured, or who was involved in the creation of the drug. This means the inmates can attempt to complain about the reliability of the drug without being afforded the information that would place the drug into a context in which the inmates and by extension the courts can evaluate the reliability based on more than impermissible speculation or perhaps unwarranted assumptions.
The judge continued:
A proponent of Kafkaesque absurdity might be proud of such a byzantine method for pursuing the protection of a constitutional right, even if the drafters of the United States Constitution might not. A right bereft of an effective, meaningful means to protect that right is arguably nothing more than an illusion to appease a society that conveniently and comfortingly seeks to tell itself that it kills with fairness. Society may or may not achieve that laudatory goal, but it would make sense to come to a conclusion on that issue based on something as likely helpful as actual facts. But the issue pervading this action is not whether a different approach in the atypical context of lethal injection might be better, but whether a different approach is compelled. Under the limited rights afforded all citizens under the Constitution, it is not, and Plaintiffs’ claims based on pursuit of such a different approach warrant dismissal.
This is not reasoned justice. This instead is complete judicial capitulation to the corrections and compounding industries, and to the politicians beholden to them, and to a cult of secrecy that has taken hold in virtually every outlier state that still seeks to impose capital punishment. It is a judge explicitly acknowledging that “a right bereft of an effective, meaningful means to protect that right is arguably nothing more than an illusion” and then issuing a decision that reinforces the injustice of that illusion to a group of condemned men seeking no more than basic information about the manner in which the government seeks to kill them.