Monday, November 10, 2014

Or They'd Have To Kill You

We knew it was coming.  They'd made that clear.  Ohio was going to enact a law to keep all the execution details secret.  

  • Who makes the drugs?  Secret.
  • How they get the drugs?  Secret.
  • Who administers the drugs?  Secret.
  • Who advised them about the drugs?  Secret.

And it would protect the folks involved in other ways.  

  • Prohibitions on pharmacists participating?  Not in Ohio.
  • Prohibitions on EMTs participating?  Not in Ohio.
  • Prohibitions on nurses participating?  Not in Ohio.
  • Prohibitions on doctors participating?  Not in Ohio.
  • Prohibitions on violating professional ethics? Not in Ohio.

As I said, we knew it was coming.  Hell, they'd announced it.  Gonna do it.  And do it fast so that the killings scheduled to begin again in February could go forward.  

And so, as this session of the General Assembly draws to a close, House Bill 663, a bill
to provide confidentiality and license protection for persons and entities involved in executing a sentence of capital punishment by lethal injection . . .
Which, as I said, we knew.

And I suppose, maybe, if I'd been paying more attention, I'd have known to expect the next part of that sentence, though frankly, it doesn't really capture just what they've done.
and to void as against public policy any agreement that prevents the supplying of any drug or drugs to be used in executing a sentence of capital punishment by lethal injection
So let me try and explain it.

The bill says, and I'll quote the specific language in a minute, that no government entity or agency or agent or whatever can make an agreement, formal or informal, to interfere with Ohio getting the drugs it needs to kill people.  And if there is such an agreement, it doesn't count.  

Which I guess makes some sense.  I mean, all that says is that, say, the Mayor of Toledo can't prohibit a druggist in Toledo from giving DRC the stuff it needs to kill the folks on death row.  Not even if the druggist wants to make that agreement with the Mayor.  And if they do make the deal?  It won't count and the druggist can give DRC the drugs anyhow.

But that's only part of it.  Because the bill also says that the owner of the drugstore can't prohibit his employees from providing DRC with the drugs.  Which is rather different.  And rather more dramatic.  

Of course, it's really not about the neighborhood drug store.  DRC isn't turning to Walgreens or CVS to get the stuff they need for the needles.  They're thinking compounding pharmacies that will make individual doses of the drugs that the major manufacturers won't sell because they don't want to be in the execution business.  Nor, of course, do the compounding pharmacies, which is why they're only willing to do this stuff if they can keep it secret.  

But there's still that stuff about the boss not being able to direct the employees.  Here's what the bill actually says.
(F) Notwithstanding any provision of law to the contrary, any contract, subcontract, agreement, addendum, or understanding, or any portion of any such document or understanding, that does either of the following is void and unenforceable as against public policy, as a matter of law, and shall not be recognized or enforced by any court against any entity, including, but not limited to, the state, state agency, governmental entity, or political subdivision that is a party to the document, understanding, or portion, any private corporation, or any person:
               (1) Any such document, understanding, or portion that prohibits the sale, distribution, or transfer of any drug or combination of drugs to the state or to a state agency, governmental entity, or political subdivision for use in the administration of a death sentence by lethal injection as provided for in division (A) of section 2949.22 of the Revised Code;
              (2) Any such document, understanding, or portion that is designed to prevent the state or a state agency, governmental entity, or political subdivision from obtaining any drug or combination of drugs for a use described in division (F)(1) of this section.
I guess I don't really believe that the folks who drafted that language meant it quite as broadly as they wrote it.  I don't really think they meant that no person (like the owner of a compounding pharmacy) can make an agreement with another person (like a compounding pharmacist) to prevent that person from providing lethal drugs to the state.  I don't think they meant that.  More precisely, I don't think they thought about whether that's what the language of the bill might mean.

But sloppy legislative drafting has consequences.

Of course, maybe they did mean it.  Jackie Borchardt for quoted Bill Batchelder, the Speaker of the House explaining why it was so important to get this bill out in a hurry.
That is something that we cannot leave in abeyance, otherwise we're going to have people who pass away prior to execution.
Yup.  If we don't act fast, people will die before we can kill them.  Can't have that.  The sentence, after all (and I've noted this before) isn't death.  That's unavoidable.  The sentence is to be executed. If the condemned person dies, that means justice (whatever justice may be) wasn't inflicted.

Can't have that.

Though maybe if we kept it a secret and then strapped the body down . . . .


  1. So have they made it illegal for a compounding pharmacy to refuse to sell them drugs?

  2. No, they've just made it illegal for the pharmacy to make an agreement with someone not to sell them drugs. And if there is such an agreement, it doesn't count.