The complaint seeks a declaration that certain provisions of the new state law are unconstitutional, violates their free speech rights by concealing the identities of those to whom they would like to direct their messages about the death penalty. They also contend it restricts information that helps inform the public debate over capital punishment.
“Ohio’s new lethal injection secrecy law is Orwellian,” Cleveland attorney Timothy Sweeney said in a statement. “It punishes anyone who shares basic information about the state’s execution process with the chilling threat of costly litigation.”
Sweeney said he has not filed a motion seeking to stop any executions. He argues that state statute is unconstitutional. He would not directly answer questions about whether he is trying to stop or delay scheduled executions.
“This is all about the First Amendment,” Sweeney said in a phone interview with the newspaper.
The complaint was filed on behalf of Ronald Phillips, of Summit County, scheduled for execution on Feb. 11, 2015; Raymond Tibbetts, of Hamilton County, set for execution on March 12; Robert Van Hook, also of Hamilton County, who is to be executed Nov. 17; and Grady Brinkley, formerly of Toledo, who has no execution date.
Area inmates on death row include Davel Chinn and Larry Gapen of Montgomery County. There are 138 men and a woman on Ohio’s Death Row today. Butler County has six inmates on death row, followed by five each from Montgomery and Clark counties, two from Greene County and one in Warren County.
House Bill 663 was drafted in the hope of continuing those executions. The bill has a life of two years before its expiration. If a pharmaceutical supplier agrees to work with the state to provide lethal drugs during those two years, its identity would be protected for 20 years, according to the law.
Physicians and others who participate in the execution process will also have their identities protected.
After the expiration, a legislative committee would be convened to examine the “means and manner” of state executions.
Kasich signed the bill Dec. 19.
The inmates filed their lawsuit against Kasich, Attorney General Mike DeWine and Gary C. Mohr, director of the Ohio Department of Rehabilitation and Correction. It doesn’t challenge the inmates’ convictions, death sentences or Ohio’s lethal injection process.
Kasich spokesman Rob Nichols said the office doesn’t comment on litigation. DeWine’s office said it was reviewing the lawsuit.
The law also keeps confidential the names of participants in Ohio executions. The anonymity for companies — which would last 20 years — is aimed at compounding pharmacies that mix doses of specialty drugs.
The issue arose because Ohio’s commercial European supplier of drugs used in lethal injections balked at having its product used that way. The state ran out of the drug pentobarbital and fell back on the use of a blend of midazolam, a sedative, and hydromorphone, a morphine variant, to execute Dennis McGuire, of Preble County, on Jan. 16.
The bill sparked rare disagreement among General Assembly Republicans. Area state senators Peggy Lehner, R-Kettering, and Shannon Jones, R-Springboro, voted against it.
A Dayton Daily News staff writer, who witnessed that execution, wrote that after McGuire received the two-drug cocktail, he “gasped, snorted and struggled” for air for about 10 minutes.
McGuire’s body “started convulsing in an apparent attempt to breathe. The breaths ranged from shallow to a violent, raspy snore. The snorts were so loud his daughter covered her ears,” staff writer Josh Sweigart wrote.
In an affidavit for a lawsuit filed by McGuire’s children, an anesthesiologist testified that “to a degree of medical certainty this was not a humane execution,” The expert was paid by McGuire’s attorneys, who represent McGuire’s son and daughter in their suit against the state.
McGuire was convicted of murdering Joy Stewart, 22, who was pregnant when he raped and killed in Preble County in 1989.
State Rep. Jim Buchy, R-Greenville, told the newspaper that pharmaceutical companies have said they will work with the state if the bill becomes law.
Whether executions happen now depends on the lifting of a federal moratorium on Ohio executions. Columbus U.S. District Judge Gregory Frost imposed the moratorium in May. In August, he extended the ban until Jan. 15.
“In the Legislature, we’ve done what we were asked to do,” Buchy said.
While the bill is law, if pharmaceutical suppliers meet its provisions, then the 20-year identity protection is cemented, he said.
“We passed a law that was necessary,” he added.
Sweeney’s complaint challenges the law’s secrecy and immunity to professionals involved in the execution process. It also challenges the sealing of court records and what it calls “punitive civil sanctions” for disclosure of information covered by the new law.
The Associated Press contributed to this report.
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