WASHINGTON — A federal judge ruled this week that Ohio can keep the identities of its execution drug suppliers a secret, dealing a blow to death row inmates challenging the state's lethal injection procedures.
Referring to a legal battle that has gone on in secret over the past two months, U.S. District Court Judge Gregory Frost ruled on Monday that the state is entitled to a protective order preventing state officials from turning over information about the identities of lethal injection drug suppliers.
"If execution by lethal injection is legal, and the United States Supreme Court has repeatedly said it is, then it follows that there must be some manner of carrying it out," Frost ruled. Noting "the debatable and unsettled issues surrounding today’s decision," however, he also authorized the dispute for immediate appeal to the U.S. 6th Circuit Court of Appeals and put the case on hold while the question is resolved — a step a lawyer for the inmates said they would be taking.
The ruling came a week after Ohio officials announced it would not be holding any executions in the upcoming year, and days after BuzzFeed News revealed Ohio's Department of Rehabilitation and Correction has paid more than $30,000 to a company with expertise in helping clients import foreign drugs. Earlier this month, an ODRC official wrote to the Food and Drug Administration that it should be allowed to import foreign sodium thiopental for use in executions — a move that the FDA says is barred by a federal court order.
Frost, however, ruled that the state can keep secret what it knows about the supplier of the execution drugs called for in its current protocol — pentobarbital and sodium thiopental — from the inmates challenging Ohio's lethal injection process.
The opinion details court filings that were never listed — even as sealed — on the public court docket and secret hearings held in recent months over whether the identity of the state's suppliers of lethal injection drugs should be disclosed to the death row inmates challenging the state's execution procedures.
In explaining his reasoning for the order, Frost ruled that "disclosure of the information sought indeed presents a tangible burden on Defendants and would be unduly prejudicial."
Frost referred to a threat received by a compounding pharmacy in Oklahoma, which was submitted into evidence by Ohio officials in this case. After noting that "it only takes one fanatic with a truckload of fertilizer," the letter writer told the compounding pharmacy: "In your place, I’d either swear to the nation that my company didn’t make execution drugs of ANY sort, and then make dang sure that’s true, or else openly accept the burden of putting my employees and myself at unacceptable (and possibly uninsurable) risk. Just sayin’."
In assessing the threat, Frost wrote, "If the question is whether a reasonable pharmacy owner or compounder would feel burdened by receiving such an email, the answer is likely if not certainly yes. And by burdened this Court means likely scared to the point of electing not to help Ohio in the state’s lawful quest to kill."
The court ordered that the state does not need to turn over to the inmates' lawyers "any information or record in Defendants’ possession, custody, or control that identifies or reasonably would lead to the identification of any person or entity who participates in the acquisition or use of the specific drugs, compounded or not, that Ohio indicates in its execution protocol it will use or will potentially seek to use to carry out executions."
Lawyers for the inmates had argued that such information was necessary for them to prove their case that Ohio's lethal injection procedure is unconstitutional. In describing their claim, Frost wrote that their argument boiled down to a claim that, if they don't know the source of the execution drugs, "then they cannot know precisely what to look for and cannot consequently mount a truly meaningful challenge."
While Frost found that request "undoubtedly of some relevance or likely to lead to the discovery of relevant evidence," he concluded that "the burden on and prejudice to Defendants as discussed above outweighs Plaintiffs’ interests."
Finally, Frost also found that such a protective order was justified under federal rules and not simply because of the state law providing that government officials can keep certain information about the execution process a secret. Lawyers for the inmates had argued that the state law shouldn't apply to federal litigation, but Frost ruled that he did not need to decide that issue "because the same concerns that apparently led to the creation of the statute exist [in the federal litigation]: the burden on and prejudice to the state that disclosure presents."
Allen Bohnert, a lawyer for the inmates, said in a statement that the legal team was disappointed by the ruling.
"We know from recent media reports that Ohio officials have been trying to skirt the law in a desperate attempt to obtain execution drugs," Bohnert said. "This ruling has the potential to protect state officials and business with whom they engage in illegal activity from the legal consequences of their actions, and we plan to appeal the ruling."
UPDATE
The report has been updated with comment from one of the inmates' lawyers.
