In the Bible Belt, Christmas Isn’t Coming to Death Row

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When it comes to the death penalty, guilt or innocence shouldn’t really matter to Christians.  

NASHVILLE — Until August, Tennessee had not put a prisoner to death in nearly a decade. Last Thursday, it performed its third execution in four months.
This was not a surprising turn of events. In each case, recourse to the courts had been exhausted. In each case Gov. Bill Haslam, a Republican, declined to intervene, though there were many r…

What Indiana officials want to keep secret about executions

Indiana's death chamber
How much does the public have a right to know about how the state of Indiana executes people?

It is a question that, effectively, strikes at the heart of capital punishment. And it's the issue in a 4-year-old case in Marion Circuit Court that started with a public records request by Washington attorney A. Katherine Toomey to the Indiana Department of Corrections (DOC).

"If we win ... the Indiana public will know more about one of the most consequential areas of decision making that the state of Indiana engages in," attorney Peter Racher said in an interview.

The state, however, sees it as contrary to a state law limiting what the public can see pertaining to executions. The law was controversial because of how it passed. After midnight on the final day of the 2017 legislative session, it was added to a budget bill, two pages out of 175.

"The budget is now a death penalty bill," Rep. Matt Pierce, D-Bloomington, said at the time. "There's been no public debate. There's been no public scrutiny. Everyone knows once it's in the budget, it's going to be law."

But Indiana is hardly alone in its desire for secrecy around what it, and 30 other states, have decided is just punishment for heinous crimes. An American Bar Association publication last year listed at least 10 other states that conceal how they procure execution drugs and whether those drugs are "legitimate and effec­tive."

The Indiana attorney general, in a court filing this week defending the DOC, said of the public records case, "What (Toomey) truly craves ... is information identifying the entities which provide execution drugs to the DOC."

That could be tantamount to ending or impeding capital punishment in Indiana. Nationally, 55 percent of Americans favor the death penalty, according to a 2017 Gallup poll.

The DOC and House Speaker Brian Bosma said last year, in the wake of the new secrecy law, that anything less than anonymity would prevent companies from selling lethal drugs for executions.

American companies want to be known for life-saving, not life-ending, drugs. Indianapolis-based Eli Lilly and Co. said in a statement, "We don't make or distribute any drugs used in lethal injections."

The American maker of the drug sodium thiopental, used to render a person unconscious before other lethal drugs are administered, stopped producing it in 2009. A federal court later banned imports of the drug.

States had to change their cocktail for executions. Last year, Indiana lost an appeal to use a mix of drugs that had never been used before in an execution in the United States.

As states try new mixes of lethal drugs, there have been botched executions, one of which took 43 minutes.

Transparency in government?

Toomey's biography on the website for her law firm described her in part as representing "groups opposing the death penalty" 

Her 2014 public records request to the Indiana DOC asked for detailed information, including how the state carries out executions, the drugs used, the inventory of drugs intended for executions and where the drugs came from. She also asked for certain correspondence by public officials that would provide a window into how they arrived at their policy decisions on carrying out executions.

After initial setbacks, she won a non-binding decision by the Public Access Counselor and summary judgment in the Circuit Court in October 2016. The state appealed, and lost. The state asked the Supreme Court to hear the case, and was denied.

But that wasn't the end.

The state passed the secrecy law tacked onto the budget bill. Then state attorneys went back to the judge, asking her to change the previous summary judgment ruling in favor of Toomey. The secrecy law contains a provision that it is retroactive.  

Racher said the legislature's action was a thinly veiled attempt to thwart Toomey specifically.

"You can't enact a statute directed specifically at Kate Toomey," Racher said. "You can't say, 'This law is to affect her.' We contend that's exactly what happened here. The state had no other request other than the one our client made."

In its court filing this week, the state said that argument "is entirely without merit and unsupported by prior decisions of our appellate courts."

The case will ultimately focus on the state's retroactive confidentiality law, which Racher said is more narrow than it seems when read closely. But within that battle, the court heard arguments Tuesday on another secrecy issue — whether sealed evidence in the lethal injection case, obtained during discovery, should be made public.

Again, the state fought for secrecy.

Deputy attorney general David Dickmeyer said the material is "deliberative" and an exception to public records law. He also said the records could identify "individuals who are involved in crafting public policy as it relates to the death penalty. Revealing the identity of these individuals could subject them to harassment, public shaming and even violence from those who oppose the death penalty."

In depositions, Racher said, DOC officials said no member has received threats regarding implementation of the death penalty. Names in the sealed documents are also redacted.

The material, he told the court, involves "high government officials. The notion that those individuals are unwilling to carry out Indiana public policy for fear that their titles might become publicly accessible strikes me as speculation." 

Racher said the documents are not deliberative debates but "largely transmittals of materials."

The state contends it has provided Toomey with all the records she requested within the law. In a late motion last week, the state wanted Tuesday's public hearing cancelled, saying it should not have been scheduled based on an administrative rule. The judge denied the request. There were five people in the audience at Tuesday's hearing.

Racher said in an interview the request symbolized the state's position throughout the case.

"That's when we realized," he said in an interview, "this is insult upon insult to anyone who cares about transparency in government and openness in representative government."

Source: indystar.com, Mark Alesia, May 16, 2018

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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde

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