Judge strikes lethal injection secrecy law, says lawmakers ‘overstepped’

The Indiana Department of Correction has again lost a suit in which it argues to keep secret the drugs it would use in a lethal injection. The judge in the case extraordinarily outlined how the DOC, the governor’s office, and the Indiana General Assembly appeared to directly undermine her order that the department disclose the drugs it might use in a potential execution.

Marion Circuit Judge Sheryl Lynch on Thursday reaffirmed her prior ruling that the DOC must make public more information on the means it would use if an execution was ordered. But she also found unconstitutional on multiple grounds a law whose origins and motives were immediately questioned when it was slipped into legislation in the waning hours of the 2017 General Assembly session.

The so-called Secrecy Statute declared confidential the drugs or chemicals DOC had on hand for a possible execution. It also effectively placed a gag order on anyone in the chain of custody of those drugs, including pharmacists. Lynch found the law, tacked onto the state budget bill and passed without Statehouse debate, clearly violated First Amendment freedom of speech protections along with many other federal and state constitutional protections.

The judge’s order issued Thursday denied a DOC motion to modify her earlier order of summary judgment for Plaintiff A. Katherine Toomey. A Washington, D.C. attorney, Toomey had successfully sued the DOC, winning an order from Lynch that the department make public the drugs or chemicals that might be used if it was ordered to carry out an execution.

But Lynch’s order also shed light on machinations between the DOC, Gov. Eric Holcomb’s office, and the General Assembly that resulted in the last-minute language adopted as law that apparently was in direct in response to her ruling.

“Following the Court’s Ruling on Motion for Summary Judgment and during the five months the Department’s appeal was pending, the (DOC’s) Director of Legislative Services e-mailed the Governor’s Deputy Chief of Staff of Legislative Affairs. The e-mail attached the full text of the Secrecy Statute. On April 18, 2017, the Department’s deputy commissioner e-mailed the Governor’s legislative chief, saying, ‘[Name redacted] – I spoke with [name of Department’s legislative services director redacted] about this. I believe these [sic] version is substantially similar to the earlier draft, and should be helpful in resolving the Toomey case, and serve the other purposes …,” Lynch wrote in her order Thursday.

“In passing the Statute while Toomey’s case was pending with the Indiana Court of Appeals and the Indiana Supreme Court, the General Assembly unconstitutionally took away the judicial power,” Lynch ruled. “The General Assembly does not have the authority to determine the outcome of pending litigation. As applied to this case, the General Assembly’s passage of the Statute overstepped its authority and violated the Indiana Constitution’s Separation of Powers by disturbing a pending case and upsetting this Court’s judgment.”

Spokespeople from the governor’s office, the DOC and the Indiana Attorney General’s office, which represents DOC and the state in this litigation, did not immediately reply to messages seeking comment.

Toomey, with representation from Indianapolis firm Plews Shadley Racher & Braun, began requesting information from DOC in May 2015 regarding the drugs it was holding should the state order an execution. There are currently 12 men who have been sentenced to death on Indiana’s Death Row, as well as one woman who’s housed in Ohio. No executions are currently scheduled, and several condemned inmates’ death sentences have been overturned on appeal.

But DOC has vehemently fought requests and court orders to provide the information. The department appears to have instead relied on a strategy of passing a law that might nullify Lynch’s order.

But the judge wrote that the Secrecy Statute, which was included as an amendment to the state budget bill — posted at 2 a.m. on April 21, 2017, in the session’s final hours — wasn’t just an unconstitutional violation of separation of powers. It also violated the state’s prohibition against special laws.

“The Statute’s retroactivity clause violates the prohibition against special laws because it impermissibly applies to only one lawsuit by a single individual,” Lynch wrote. “According to the Department’s own records, Toomey is the only person who, at the time the Statute was conceived and ultimately enacted, had ever requested access to public records regarding the State’s lethal-injection drugs.”

Lynch also ruled the statute violated the Indiana Constitution’s prohibition against single-subject legislation, and perhaps most significantly, First Amendment protections for anyone who chose to make public the means by which DOC might carry out an execution.

“The broad language of the Statute is overreaching and violates the First Amendment of the U.S. Constitution and article 1, section 9 of the Indiana Constitution by censoring the speech of those individuals and entities … and their officers, employees and contractors and anyone else with knowledge of the identities of suppliers of execution drugs.

“When a statute or court order prohibits the free flow of information and ideas, it is subject to a prior-restraint analysis. The Statute is an unconstitutional prior restraint. It forbids any speaker from responding to any request for confidential identifying information, even about themselves. This applies not only to the Department but anyone, even the outsourcing facility, wholesale distributor, pharmacy, or pharmacist themselves, as well as their officers, employees, contractors, and anyone they contract with.

“This expansive prohibition on the right to speak on a matter of public importance is forbidden by the First Amendment. … Indiana may not constitutionally suppress all speech and information sharing on matters of public importance,” Lynch wrote.

Plaintiffs’ attorneys say pharmaceutical companies and distributors are loath to have their products or names associated with executions. Many have forbidden their products from being used to carry out lethal injections.

Against this backdrop, the Indiana Supreme Court ruled in February that the DOC did not need to go through a public rule-making process to develop an execution protocol. The DOC has not publicly identified the method of execution it would use if it was ordered to carry out the death penalty.

Lynch’s Thursday order also set a hearing for Dec. 12 on the plaintiffs’ request for attorney fees that the state may have to pay the plaintiffs in this case. The judge stayed her order of Oct. 24, which ordered DOC to disclose information, until after the issue of attorney fees is decided.