Over a dissent from Judge Stranch, the Sixth Circuit today in Phillips v. DeWine, No. 15-3238, upheld the dismissal of a challenge to the constitutionality of Ohio’s new statutory scheme protecting the identities of individuals and entities participating in the State’s lethal-injection process—what the dissent referred to as “state lethal injection secrecy laws.” The new law requires confidentiality of participants’ identities, prevents licensing authorities from disciplining them because of their participation, and allows participants to sue anyone who discloses their identity.
A group of current death row inmates challenged the law as violating their right to free speech and as instituting an illegal prior restraint on speech. They also argued that it violates their rights to equal protection, due process, access to the courts, and access to government proceedings.
The Sixth Circuit decided that the plaintiffs lacked standing to raise the free-speech and prior-restraint claims. The court explained that, although the broad purpose of the new statute may be to facilitate the plaintiffs’ deaths, they were not the “object” of the statute for purposes of standing, principally because, in the court’s view, the statute regulated the conduct of third parties, not the plaintiffs. The majority also concluded that the argument that the law would lead to deficient executions was speculative.
The court rejected the rest of the claims for failure to state a claim. The court concluded that recognizing a right of access to government proceedings in this circumstance would expand the right beyond what the Supreme Court has allowed. The court also dismissed the equal-protection, due-process, and access-to-courts claims on the basis that the plaintiffs had no constitutional right to discover evidence of ineffective execution procedures or to litigate such grievances effectively.
Judge Stranch issued a fervent dissent. She began with the “horrifying tale” of Ohio’s last execution, which the State botched. After inmate Dennis McGuire’s lethal injection, Judge Stranch explained, he stayed alive for 25 minutes while he spasmed, gasped, snorted, and choked. Judge Stranch stated plainly that there is “no doubt” that the new law “will obstruct scrutiny of Ohio’s execution protocol.” She then explained why, in her view, the plaintiffs had standing to challenge the civil-action provision. She also argued that the majority misapplied Supreme Court law on the First Amendment right of access, and that the district court prematurely dismissed the plaintiffs’ due process claim without examining the viability of a procedural due process theory. She ended on a call to permit these types of claims to be heard in order to “protect the functioning of our justice system.”