The Ohio Department of Rehabilitation and Correction has for months been working on Gov. Mike DeWine’s order that it revamp Ohio’s execution protocol. But the department says it hasn’t generated a single email or other written communication related to the work.
The governor’s office suggests the lack of such documentation is intentional.
That has critics accusing the administration of trying to avoid transparency in an endeavor that in the past has been riddled with problems carrying out the death penalty and obtaining the drugs to perform executions.
"The execution process across the United States has been plagued by secrecy and a lack of transparency," said Robert Dunham of the Death Penalty Information Center, a national group that gathers information about how capital punishment is practiced.
In Ohio, problems go at least as far back as 2014, when Dennis McGuire choked and gasped for about 10 minutes before dying after being administered a new, two-drug protocol. That prompted a three-year moratorium as prison officials came up with a three-drug protocol that still used midazolam — which has been used in botched executions in at least four states — as the first in the mixturel.
Since 2017, Ohio has conducted four more executions and abandoned a fifth when prison workers couldn’t inject drugs into a man’s veins. Then, earlier this year, U.S. Magistrate Judge Michael Merz issued a ruling that likened the Ohio protocol to "waterboarding," and said it "would feel as though "fire was being poured" into a prisoner’s veins.
In response, DeWine postponed one execution and then three more as he ordered the department of correction to devise a new lethal-injection protocol. But as corrections officials did, they had to contend with accusations that the state was using subterfuge to obtain earlier execution drugs from manufacturers who were adamantly opposed to their use in carrying out the death penalty.
Seeking to get an idea for the public of what drugs the state is thinking of using and how it plans to get them, The Dispatch in April filed an open records request with the corrections department for all of its internal and external communications regarding DeWine’s order and the development of the new protocol. Hearing nothing, the paper last week asked about the status of the request. It got a response the same day.
"After investigation and review of our agency records, we have determined that we have no responsive records. Thank you for your patience," spokeswoman Sara French said in an email.
While it might seem implausible that such as weighty matter as devising a new death-penalty protocol could be undertaken by a state agency without a single email or memo being generated, DeWine spokesman Dan Tierney seemed to say that was by design.
"Gov. DeWine agrees that execution protocol is a very sensitive issue, and that sensitivity may not be appropriate for general email or common written correspondence," he said in an email. "The governor speaks with Director (Annette) Chambers-Smith regularly, and he will be receiving a full briefing on this issue soon. (The Department of Rehabilitation and Correction) remains focused on researching a new protocol using drugs that the state of Ohio can actually obtain."
Dunham, of the Death Penalty Information Center, said it appears that DeWine and his administration are trying to keep the public out of the loop.
"What’s clear is that people don’t intentionally structure communications to avoid putting things in writing unless there’s important information they don’t want people to know," he said.
Monica Nieporte, president and executive director of the Ohio News Media Association, said the state should not try to devise something as important as a new lethal-injection protocol in secret.
"Since it appears that the work done on this issue has largely been done through verbal conversation and, according to DRC, there is no supporting documentation that is public record, it makes it very difficult for journalists or citizens to determine what progress has been made on this topic," she said in an email. "Hopefully as their research winds down and they are at the point of making recommendations, they will be providing some detailed explanations including documentation about how they made their conclusions."