CINCINNATI (CN) – A lengthy legal battle over Ohio’s execution protocol continued Friday in the Sixth Circuit, as death-row inmates challenged a lower court’s protective order for providers of lethal injections.
The order, granted by the U.S. District Court of Southern Ohio, allows suppliers of the drugs used in executions to remain anonymous.
At the district court level, the state argued the order was necessary to prevent suppliers from withholding drugs for fear of prosecution or damage to their reputations.
Attorney Erin Gallagher Barnhart, representing the inmates, argued Friday that the state provided insufficient evidence for the protective order, which effectively prevents all discovery regarding the identities of drug supplies and members of the execution crew.
She listed numerous reasons a supplier might withhold drugs – from unfair compensation to a refusal to be involved in executions – and told the panel of judges that “speculation [by the state] is not enough to justify relief.”
Attorney Charles Wille, on behalf of the state of Ohio, pointed out that “numerous courts have recognized that … disclosure has prevented states from obtaining [execution] drugs.”
He reiterated that providers of the drugs fear exposure, but was hard-pressed to provide any concrete evidence when questioned by the panel.
Sixth Circuit Judge Jane Branstetter Stranch asked for “non-speculative evidence,” and suggested that the companies “may have decided they don’t want to be in the death business.”
“Where we find ourselves is a new position. As a result of changing standards of human thought in our nation … [companies choose] to no longer provide the drugs,” Stranch opined.
“The most compelling evidence is the delay of three years [since the last execution] because of the lack of availability of execution drugs,” Wille replied.
“[District Court Judge Gregory L. Frost made it clear] in his order that information from drug providers is not necessary to prove [the plaintiffs’] claims,” the attorney continued. “How could you say that the name of a drug provider is crucial to proving an Eighth Amendment violation?”
Ohio has not executed an inmate since January 2014, when Dennis McGuire struggled for more than 26 minutes during his execution.
The lethal drugs used in executions have become increasingly difficult to obtain, but Ohio plans on using a Food and Drug Administration and U.S. Supreme Court-approved mixture of three drugs starting next year.
The deadly concoction includes midazolam, rocuronium bromide and potassium chloride.
Testing of the drugs has not been completed by the plaintiffs, but Wille conceded that the state would most likely allow it.
Sixth Circuit Judge Alan Eugene Norris, who participated in the arguments via video monitor, peppered the plaintiffs’ attorney about the lack of testing.
“You just want to stall,” he said. “You don’t care about the purity [of the drugs] … Why haven’t you done this testing? Just go do it.”
“It’s not a stalling technique,” Barnhart responded. “We cannot get all of the required information to do complete testing. You can’t just submit a sample and say ‘test it.’ We need to know what we are looking for.”
In her rebuttal, Barnhart urged the panel to vacate the protective order, or at a minimum allow for attorneys-eyes-only discovery, and called the state’s rationale “speculative, generalized, and not specific.”
The Sixth Circuit panel also included Judge Eugene Edward Siler Jr.
Judge Stranch noted that the court would expedite its decision in light of the fact that two of the plaintiffs are scheduled to be executed in January.