High court splits over revealing execution drugsMarch 3, 2021
By The Associated Press
INDIANAPOLIS — The Indiana Department of Correction faces paying more than $500,000 in legal fees in its unsuccessful fight to keep its execution drugs secret.
A 2-2 split among Indiana Supreme Court justices leaves in place a lower court ruling that ordered the prison agency to release the information. The Supreme Court’s order issued last week also means the state must pay the legal fees of an anti-death penalty attorney who has been seeking information about Indiana’s lethal injection drugs for seven years.
The ruling will hinder Indiana’s ability to carry out executions and leaves many unresolved issues that will likely end up back in court, Indiana Solicitor General Thomas Fisher told The Indianapolis Star.
Indiana currently has eight men facing the death penalty who are being held at the Indiana State Prison in Michigan City. No executions are currently scheduled, and the state last executed an inmate in 2009.
The legal case began after Katherine Toomey, a Washington, D.C., attorney who represents groups opposing the death penalty, filed a public records request seeking the identities of the manufacturers, distributors and suppliers of Indiana’s execution drugs. Toomey filed a lawsuit after the Department of Correction refused that request.
Prison officials in Indiana and others states have argued they will face trouble obtaining drugs for future executions if their suppliers believe they could be exposed. Some drug companies have refused to sell medications to states if they will be used for executions.
Indiana legislators in 2017 tried to circumvent a judge’s decision ordering release of the information by retroactively changing state law to make confidential any contracts to acquire drugs for executions and the identities of manufacturers or suppliers involved.
Marion County Judge Sheryl Lynch, however, refused to reverse her ruling. Lynch found, among other things, that the new law wrongly prohibited those outside state government, such as drug manufacturers or suppliers, from providing the information.
Lynch also ordered the state to pay Toomey nearly $540,000 in attorney fees, citing the Department of Correction’s “egregious” conduct in pushing the legislative work-around.
Indianapolis attorney Peter Racher, who represented Toomey, said the Supreme Court’s order was a vindication of the state’s public records law.
“The law in Indiana has long required public agencies to respond to requests just like the one Kate Toomey made back in 2014,” Racher said. “Citizens should not have to fight this hard to have their government respond to records requests.”
Indiana Chief Justice Loretta Rush and Justice Christopher Goff voted to uphold the Marion County judge’s ruling, while Justices Steven David and Mark Massa voted to overturn it. Justice Geoffrey Slaughter did not participate in the case, but no reason for that decision was announced.
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