Feds to appeal upholding of drug secrecy

Because no U.S. suppliers have offered the lethal drugs, the state has tried to import them.

A federal judge’s order upholding an Ohio law concealing the source of lethal-injection drugs will be appealed by the Federal Public Defender’s Office.

U.S. District Judge Gregory L. Frost ruled on Monday that since lethal injection is legal, “it follows that there must be some manner of carrying it out.”

That means the state is justified in not divulging where it obtains the drugs used to execute prisoners, Frost decided.

Saying the state is not “entitled to carte blanche in their efforts to obtain drugs and materials for executions,” Frost limited his ruling to the two drugs currently established in Ohio’s execution policy, sodium thiopental and pentobarbital.

Allen L. Bohnert, assistant federal public defender for the Southern District of Ohio, said he was disappointed that the state is trying to hide its efforts to obtain drugs from foreign sources. The case now will move to the Cincinnati-based 6th U.S. Circuit Court of Appeals.

“Ohioans find the idea of hiding illegal state activity offensive to the fundamental notions of rule of law and transparent, open government, regardless of their views on the death penalty specifically,” Bohnert said in a statement.

“We know from recent media reports that Ohio officials have been trying to skirt the law in a desperate attempt to obtain execution drugs.”

“This ruling has the potential to protect state officials and businesses with whom they engage in illegal activity from the legal consequences of their actions, and we plan to appeal the ruling,” he added.

The ruling will have no immediate impact since Gov. John Kasich postponed all scheduled executions until 2017 because of the lack of available drugs.

Ohio has tried unsuccessfully for months to obtain lethal drugs from domestic and foreign sources.

A law approved last year allows the Department of Rehabilitation and Correction to negotiate drug deals without disclosing the source, except to a judge. So far, no domestic suppliers have stepped forward, prompting the state to try importing drugs from overseas. The state has paid an attorney more than $33,000 to aid in its import search.

The U.S. Food and Drug Administration warned the state this summer that it is illegal to import the specific drugs it is seeking for executions. Prison officials responded that they think there is a legal way to buy foreign drugs; the federal agency has not responded.

A spokesman for Attorney General Mike DeWine’s office said Frost’s ruling is under review and he could not comment on an appeal.

The execution-secrecy bill concealing the source of drugs, such as from compounding pharmacies, also forbids disclosing the identity of execution-team members and doctors involved in executions.