Death penalty process lacking accountability, transparency
All Hoosiers lose with lack of transparency around upcoming execution. (Seth Tupper/South Dakota Searchlight)
Public access and transparency have taken a beating during the process to resume executions in the state of Indiana. And that hurts public confidence in the system.
The Indiana Department of Correction won’t hold any press briefings or information sessions for the state’s first execution in 15 years. It will send two updates via email to reporters on the day of the death.
Only Wyoming and Indiana don’t allow media witnesses out of the 27 states and the federal government that have the death penalty. In several states, it’s a discretionary choice for correction officials but the vast majority authorize a set number of media witnesses from three to 12.
Indiana is a clear outlier. In some executions, reporters have provided factual information on mistakes or botched results.
The agency has also denied virtually every information request related to the execution, including any information about the drug that will be used to kill Joseph Corcoran before sunrise on Wednesday.
Agency staffers won’t say how many vials were bought, what it cost, the expiration date. Nothing.
They are hiding behind a law that protects the identity of the company that the state bought the pentobarbital from. That law exists because manufacturers and distributors were getting bad press when they supplied states with drugs to perform executions. And that’s fine.
But as taxpayers, we should be able to know what the state is spending on executions and the cost of the drug is a key part. Without knowing how many vials were bought, it’s impossible to know how many executions the state intends to carry out. And the expiration date of the drugs is also important for the integrity of the process.
Seeking clarification
That’s why I filed a complaint with the Public Access Counselor to get the cost. The law shields “information reasonably calculated to lead to the identity” of the supplier. IDOC considers the cost alone enough to give a foothold to reverse engineer online financial records to identify the identity of the supplier, according to their response.
How, I have no idea.
And all this leads to my other major transparency issue — my fear that public records and access would be decidedly chilled by last-minute legislative changes last April.
You see, lawmakers neutered the public access counselor position because they didn’t like some of the officeholder’s rulings. They first changed the post from a term of years to serving at the pleasure of the governor. The point of that is so he or she can be fired at any time if a ruling ticks the right people off.
But another key change said the public access counselor shall consider only: (1) the public access laws, as plainly written; and (2) valid opinions of Indiana courts.
Counselor backs off
I was concerned immediately that this would mean the counselor would avoid making rulings and instead force everyone to go to court. I was right.
The current counselor, Luke Britt, sent a letter Friday to me and a public defender who had also sought various records related to the execution. I have always respected Britt’s decisions, even ones that didn’t go my way. But it’s clear from the letter that his powers have been muted.
“The General Assembly has issued new marching orders to the public access counselor to limit my interpretation of statutes of the access laws to their plain reading when crafting advisory opinions. The statute in question does not contain an exhaustive list of the public records that may lead to the reasonable calculation of an identity or a vendor. Toward that end, the legislature has not defined the term ‘reasonably calculated’. The public access counselor must pass on any inference regarding ambiguous statutes either way. Likewise, case law does not exist either addressing these matters.”
So, basically, the legislature tied the access counselor’s hands behind his back and Hoosiers have to instead file a lawsuit to get an answer.
We are evaluating our next options as litigation can be lengthy and expensive. But it’s clear Hoosiers won’t know what the state of Indiana spent when Corcoran takes his last breath next week.
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