Opponents of an Ohio law that grants anonymity to nearly everyone involved in executing prisoners say the law infringes on the public’s first amendment rights. Attorneys also point to a lack of similar protection for those who carry out other controversial procedures, such as abortion and stem cell research.

Four death row inmates are suing Ohio to stop a law, passed in November’s lame duck legislature, which made the names of doctors, employees, contractors and compounding pharmacies involved in executions secret, immune even from a subpoena.



The legislation exempts such information from the state’s open-records laws, and means people who reveal names of those involved in executions can be sued and subject to punitive fines. It is scheduled to take effect in March.

“Ohio’s new secrecy law is specifically designed to foreclose only one side of this debate, which is a clear violation of the public’s first amendment rights,” said Timothy F Sweeney, a lawyer for one the four death row prisoners.

“Constitutional protections are most needed precisely when the government begins to limit the ability of its citizens to question, speak, or inquire freely into its workings, and that is certainly the case here.”

One of the arguments lawyers have made against the secrecy law is that doctors involved in areas of similar public policy debate have never enjoyed such protection.

“Those who perform abortions or those who engage in stem cell research, for example, also face intense directed speech from citizens in opposition to their activities,” the motion filed by the prisoners reads.

“If such be ‘harassment’, they are exposed to levels of that purported ‘harm’ that are magnitudes greater than what those shielded by [state bill] HB 663 would ever face or even imagine.”

The Ohio law is one of several attempts by death penalty states to keep proceedings secret. Not all have taken the statutory route – Texas, for example, has through regulatory action refused to release information about where it has sourced drugs used in lethal injections. Such drugs have been in short supply since European pharmaceutical companies began refusing to sell drugs for use in executions.

“We’re looking at the broader issues of our democracy and our constitution,” said Richard Dieter, executive director of the Death Penalty Information Center. “And, in that light, the decisions are going to start coming down differently.”

Dieter said he believed Ohio’s law could be a candidate for judicial testing because of its broad public disclosure exemptions, which exclude even courts in most cases.

“Courts are going to recognize that this is controversial – that’s exactly where you need information,” he said. “There’ll be some people who don’t want that exposure, but that’s part of a democracy. You do have to take responsibility for your action.”

Ohio has faced pressure to reform its lethal injection procedures since the January 2014 execution of Dennis McGuire. McGuire’s death took more than 20 minutes, during which he gasped for breath and attempted to sit up. The 53-year-old’s gruesome death was predicted by a Harvard professor of anesthesiology.

The doctor told Judge Gregory Frost in a nine-page declaration that the state’s experimental two-drug cocktail of midazolam and hydromorphone would not be enough to kill McGuire without causing him undue harm. States are required to perform executions without inflicting excess pain, part of the constitutional ban on cruel and unusual punishment.

The botched execution of McGuire led to a court-imposed moratorium on the death penalty in Ohio until February 2015. Judge Frost is also hearing the lawsuit to stop Ohio from keeping secret details about how it administers the death penalty.

According to the state bill, HB 663, Ohio needed to make secret the names of small compounding pharmacies that make the drugs for executions in order to protect them from “physical harm” and “harassment”. The law would also bar medical licensing boards from sanctioning doctors who take part in executions.

States have sought to shield manufacturers of the drugs used in lethal injections since public scrutiny pushed makers to stop selling such drugs for executions. The lack of companies willing to supply execution drugs has led to a drug shortage, forcing some states to use untested lethal injection combinations, such as in McGuire’s execution.