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Ohio’s New Frontier in Secrecy

Protecting doctors who testify for lethal injections.

Before Dennis McGuire was injected with an untested drug mixture last January, before his stomach swelled and he struggled violently to breathe, and before a federal judge halted all executions in Ohio, an anesthesiologist named Mark Dershwitz testified for the state in support of the lethal-injection protocol it was planning to use. The chosen mix of drugs would cause no undue suffering, the doctor advised. The condemned man, a 53-year-old convicted murderer and rapist, would die a quick and humane death.

Five months after McGuire's execution, Dershwitz abandoned his role as an expert witness, giving up a decade of work on behalf of 22 states and the federal government. He did so after Ohio officials announced they would use the same drugs in a higher dosage for their next execution — and that they had devised that plan after consulting with Dershwitz.

Where Ohio officials might find a replacement for Dershwitz is unclear; the American Board of Anesthesiology warned in 2010 that it might revoke the certificate of any anesthesiologist who “participates” in an execution. But Ohio legislators are trying to make the search easier, moving quickly to enact a new law that would protect such doctors from any problems they might face with the state's medical-licensing board.

Under a measure that passed the Ohio House last week and is now headed to the Senate, the state would impose a series of secrecy provisions that have been implemented by other states as the litigation over lethal execution has escalated and the drugs used in the process have become more difficult to obtain. Like these other laws, the Ohio bill seeks to protect compounding pharmacies that mix drugs used in the executions from being publicly identified.

But the proposed Ohio law underscores how physicians are emerging as new front in the legal battle over executions. Since the death penalty was reinstated by the Supreme Court in 1976, the choice of lethal injection as a more humane alternative to gas chambers and firings squads has given doctors a critical role in the process. The American Medical Association has publicly opposed its members’ involvement in executions since 1980, but its position has carried little weight, since fewer than 20 percent of doctors belong to the group.

The position taken in 2010 by the American Board of Anesthesiology — whose certification is required to work in many hospitals — has been more consequential. “Anesthesiologists are healers, not executioners,” the board secretary J. Jeffrey Andrews wrote.

In 2011, European drug manufacturers responded to pressure from anti-death penalty activists by curtailing the export of lethal-injection drugs to the United States. Since those manufacturers accounted for virtually all of the supplies of the most commonly used drugs, state officials in the United States became more dependent on doctors — usually anesthesiologists — to help devise the new drug mixtures that they contracted compounding pharmacies to produce.

Missouri had already banned the disclosure of “the identity of a current or former member of an execution team” in 2007, but after the shift to American pharmacies and doctors, similar bans were written and revised in more than a dozen other states. Lawyers for prisoners facing execution have responded by challenging these new protocols in court. They have argued that the improvised drug mixtures might cause their clients excessive pain, and would therefore violate the constitutional ban on cruel and unusual punishment. A series of botched executions in Arizona, Oklahoma and Ohio have further encouraged authorities to further cloak the process in secrecy.

The effect of the secrecy laws has often been to add an extra step in litigation for attorneys who want to challenge the constitutionality of a protocol, says Megan McCracken, Eighth Amendment Resource Counsel at the U.C. Berkeley School of Law's Death Penalty Clinic. Now, she says, “when secrecy statutes prevent the courts from reviewing pertinent information about execution procedures, they effectively prevent a determination of whether the execution procedures are constitutional.”

The American Civil Liberties Union and various newspapers are currently challenging these secrecy provisions in Missouri, Pennsylvania, and Arizona, citing the First Amendment and the public’s right to know the sources of the drugs.

Another result of the secrecy provisions has been to make it virtually impossible for the American Board of Anesthesiology to decertify doctors who participate in executions, since the board can only act if it knows a doctor’s identity. There was little the board could do when, in August 2013, the ACLU asked it to take action against the “board-certified anesthesiologist” involved in Missouri executions, but did not know his or her name. In court documents, the person was only identified as “M3.”

When protocols are challenged by lawyers for death row inmates, as they are in virtually every state, doctors are enlisted by both sides to testify as to whether a combination of drugs will cause an inmate so much pain as to potentially violate the constitution’s ban on cruel and unusual punishment. Unlike the doctors who actually participate in executions, these anesthesiologists cannot keep their names secret.

Dershwitz, a professor of anesthesiology at the University of Massachusetts Medical School, had served as an expert for 22 states, providing testimony in support of the reliability of various drug combinations. When the American Board of Anesthesiology announced that its members could not be involved in lethal injections, Dershwitz asked whether we could still testify as an expert witness. The Board said he could, and Dershwitz started to demand that his contracts with the state describe his role as an “expert witness,” as opposed to “consultant” or “adviser.”

Dennis McGuire’s botched execution had been performed with a combination of midazolam, a sedative, and hydromorphone, a derivative of morphine. Dershwitz maintained that McGuire did not suffer, but in April, Ohio officials decided to up the dosage of the drugs in future executions and implied this had happened with his approval.

Shortly thereafter, the American Board of Anesthesiology threatened to rescind Dershwitz’s certification. “I cannot take that chance and will therefore terminate my role as an expert witness on behalf of Ohio and all other states and the federal government,” he responded in a press release in June.

The following month, a federal district court judge, Gregory Frost, halted all executions in Ohio, calling the state’s application of its lethal injection protocols “haphazard.” The suspension is to last until February, and state officials have scheduled Ohio’s next execution for February 11.

Ohio’s new House Bill 663 synthesizes the various protections other states have enacted to keep the names of doctors and pharmacies confidential. It mirrors the Missouri law by preventing the names of doctors who help create and implement the lethal injection drug protocol from being divulged in court. It also mirrors a North Carolina law protecting doctors who participate in executions from problems with the state’s medical board. The North Carolina medical board had tried to discipline these doctors in 2007 but was overruled by the state’s supreme court.

But the Ohio bill’s broad language also grants protection to anyone who “provides expert opinion testimony regarding an execution by lethal injection” from “any disciplinary action” by a “licensing authority.”

The Ohio medical board has already told its licensees they are free to testify on lethal injection protocols — and no medical board in the country has ever taken action against a physician for participation in an execution — but the bill offers even clearer protection. Ty Alper, a professor at the U.C. Berkeley School of Law, has predicted that calls for medical boards to discipline doctors who participate in executions will only increase. The fact that Dershwitz testified for so many states suggests that anesthesiologists who want to put their name on the record in support of these protocols are in short supply, even as demand for them increases.

“I suspect the motivations…are to encourage people who wouldn't want to be publicly associated because they're afraid of retribution,” says David Waisel, an anesthesiologist at the Boston Children’s Hospital, who has testified against Dershwitz’s opinions. The legislature cannot protect a doctor who replaces Dershwitz and testifies for the state from losing their accreditation with the American Board of Anesthesiology, but the protection offered by the bill “might be an enticement to anesthesiologists,” Waisel says.

While prosecutors in Ohio support the bill, it has faced fierce opposition from the state’s medical association (which is independent of the licensing board), public defender office, and religious groups. “I believe there are so many areas where legislation can be challenged — on due process rights, ability of courts to monitor and find information, rights of the public and the press,” says Mike Brickner, policy director for the state’s ACLU chapter. “The people who lose the most are the taxpayers, because we will be spending many years in costly litigation we have to pay for because we rushed legislation.”