Death penalty on hold until 2016
Ohio has swapped out the drugs it uses to execute death-row inmates 5 times in 6 years and it still isn't sure it's got the right combination - or a steady supply of killing drugs - to start and continue with executions.
State officials have dangled the promise of secrecy before compounding pharmacies, hoping they'll replicate the drugs from scratch to do an end-run around U.S. and European drug-makers that won't sell drugs to put people to death.
The state confirmed it has taken the unusual step of getting an import license with the U.S. Drug Enforcement Administration in hopes of locating a willing seller elsewhere.
And still, the state's lethal injection gurney has not been used in more than 17 months and won't be for another 6 months at the earliest. Ohio, like many of the 30 other states with capital punishment, has been unable to obtain the drugs it would prefer to use to put condemned inmates to death.
"DRC continues to seek the drugs necessary to carry out court-ordered executions," said JoEllen Smith, spokesman for the Ohio Department of Rehabilitation and Correction. "This process has included multiple options."
In the meantime, a new 6-member legislative committee charged with taking a long-term look at Ohio's execution process has yet to meet.
The state is trying to get its hands on supplies of pentobarbital or sodium thiopental, the barbiturates it prefers to use separately in massive doses.
But manufacturers - most European owned - refuse to sell either drug to state prisons in death penalty states. The European Union, which considers the death penalty to be a human rights violation, prohibits the export of execution drugs to such facilities.
Ironically, Ohio has abandoned one drug that is readily available - midazolam - whose use the U.S. Supreme Court last month refused to block. But the state has shown little inclination of reincorporating the sedative into its lethal injection protocol.
Ohio's 1-time use of midazolam in January, 2014, in conjunction with the morphine derivative hydromorphone, to put Dennis McGuire of Montgomery County to death did not go as planned. Witnesses described McGuire as making choking sounds and struggling against his restraints for 26 minutes after the drugs began to flow into his veins and before he died.
The litigation and moratoriums that followed prevent another execution from taking place in Ohio before Jan. 21, 2016. There are 141 inmates on Ohio's death row.
In its June ruling upholding Oklahoma's execution method, the U.S. Supreme Court found that condemned inmates failed to show that the use of midazolam amounted to cruel and unusual punishment as prohibited by the U.S. Constitution.
"What's notable in the Supreme Court decision is that, while it rejected a challenge to Oklahoma's protocol, it didn't mandate that states use any particular drug or drug combination," said Robert Dunham, executive director of the Death Penalty Information Center. The nonprofit center studies and provides data on capital punishment but does not take a position on it.
"States that previously used midazolam are not required to go forward with that," he said. "A state doesn't have to ignore the botched executions in Oklahoma, Arizona, and Ohio. Ohio was very concerned about the executions that were botched in its state, and I think they are generally concerned about the process. Ohio wants to proceed with care to try to avoid a repeat."
Some states have looked at alternatives to lethal injection. Tennessee has resurrected the electric chair. Oklahoma has adopted nitrogen gas, never before used in a U.S. execution. Utah brought back the firing squad. All would be fallbacks if lethal injection is unavailable.
There's been no such move in Ohio, but the issue could be on the table when a special joint Ohio House-Senate committee eventually meets to talk about the future of the death penalty in the state.
"If not the legal and practical method of lethal injection, then we should be looking at other means of effecting the death penalty that are not cruel and unusual punishment," said Sen. Bill Seitz (R., Cincinnati), an appointee to the panel.
"We should stay well within prior precedent," he said. "I don't want to be a guinea pig. There are other forms that have been upheld in the past, including the firing squad."
Mr. Seitz said he was concerned that the panel hasn't met yet, given it must make recommendations to the General Assembly in time for passage of a new law before the current compounding pharmacy secrecy law expires in a year and a half.
He said he doesn't believe an end to capital punishment in Ohio is on the table.
"In other states, they've gone from the ridiculous to the archaic," said Rep. Nickie Antonio (D., Lakewood), a death penalty opponent. "I'm not even going to mention all the different things that have been suggested that we might go back to."
John Murphy, executive director of the Ohio Prosecuting Attorneys Association, said the association has not advocated for alternative forms of execution - yet.
"We may need to look at that with this difficulty of securing the drugs, something like [nitrogen gas], which doesn't involve injection," he said. "Not the electric chair, but I hope a different method."
Ohio used the electric chair from 1897 to 1963 before the U.S. Supreme Court struck down death penalty laws of that time. When Ohio resumed carrying out the death penalty in 1999, convicts could choose electrocution as an option along with lethal injection.
But the electric chair was never again used here. When an inmate indicated he planned to choose the chair in 2001, lawmakers mothballed it.
Texas was the 1st state to use lethal injection in 1982.
For a decade after 1999, Ohio, like most states, used sodium thiopental as the 1st drug in a 3-drug protocol. It was used to render an inmate unconscious before other drugs stopped his breathing and then his heart.
After major problems finding usable veins caused then-Gov. Ted Strickland to call off the 2009 execution of Romell Broom of Cuyahoga County well after the process had begun, Ohio became the 1st state in the nation to switch to a massive dose of a single drug, sodium thiopental, formerly the 1st in a 3-drug method.
Then the access problems began.
The drug's sole manufacturer, Illinois-based Hospira Inc., closed its North Carolina plant for reasons unrelated to executions. Sodium thiopental is no longer manufactured and marketed in the United States.
Hospira's new plant was in Italy, which doesn't have the death penalty. The company was pressured not to supply the drug to execution states, and the European Union later followed with an outright ban on the export of such drugs to death penalty states.
In 2011, Ohio switched to injectable pentobarbital and used it several times before it became unavailable. Its maker's Danish owner, Lundbeck, has licensed the U.S. manufacturing rights to Illinois-based Akorn Inc. But the company restricts distribution to prevent it from getting into the hands of agencies attached to executions.
"When we look back, pharmaceutical companies used to contact departments of correction and governors and say, 'Please don't use our drugs,'" said Megan McCracken, Eighth Amendment resource counsel at the Death Penalty Clinic at the University of California, Berkeley, school of law. "There was no muscle behind it," she said. "More recently, they've been electing to take affirmative steps to prevent their use." Pentobarbital remains readily available in the United States for hospitals and, in a variation, to veterinarians. But the state cannot go to a local veterinarian to get the drug.
"Drugs used in animals are labeled as FDA-approved and are regulated by the pharmacy board for animals only," said Dr. Rich Bednarski, professor of veterinary anesthesiology at Ohio State University's college of veterinary medicine.
"If you have the same drug that is used by veterinarians and is also available for people, I have to use the veterinary drug, because that's the rule. To use a veterinary-labeled drug for people would be the same issue."
In the case of pentobarbital for killing dogs, the drug is approved in a stronger concentration and with added compounds than in the version used for human anesthesiology.
The Food and Drug Administration has not approved any drug specifically for execution purposes.
Meanwhile, midazolam, despite its association with problematic executions in states including Ohio and Oklahoma, is a generic drug manufactured by multiple companies and is readily available in this country.
"Akorn is one of the companies that make midazolam," Ms. McCracken said. "They've put a control on midazolam that they announced earlier this year. What's interesting is, in its announcement, they noted that they only control about 1 % of the midazolam market."
Some states such as Missouri and Texas have managed to acquire supplies of execution drugs with many assuming they have done so through compounding pharmacies. Like Ohio, the states have laws to shroud the identities of their suppliers.
"That's who's left," Mr. Dunham said. "American pharmaceutical companies won't provide drugs for execution. It's illegal to export the drugs from Europe. Some states have looked at 3rd-party exporters.
"Nebraska had its debacle," he said. "Attempting to get execution drugs to forestall legislative repeal of the death penalty, they contracted with a supplier who did not have proper licenses. Because it would have been illegal to allow the drugs to enter the country, the federal government, under court order, was required to seize those drugs."
Nebraska recently abandoned the death penalty, overriding a gubernatorial veto to do it.
The Washington-based International Academy of Compounding Pharmacies has discouraged its members from participating in the execution process, noting they've been placed in this position because of actions taken by major drug manufacturers.
"IACP believes that a national discussion needs to be conducted on whether a pharmaceutical manufacturer can restrict the use of FDA-approved products only to purposes that adhere to their corporate values," reads the academy's written statement.
Mr. Dunham also noted that there are legal questions about using compounded drugs that haven't been FDA-approved.
The state recently filed its revised execution protocol with U.S. District Court in Columbus, adding a provision that the Department of Rehabilitation and Correction will have a sample of any compounded drugs it receives analyzed for identity and potency.
Ohio has acquired an import license through the Drug Enforcement Administration for sodium thiopental, but that doesn't mean that DEA will allow that drug to cross U.S. borders given the European Union prohibition.
In part because of the drug shortages, the number of executions carried out in the United States dropped to a 2-decade low in 2014. 35 inmates were put to death, 1 of them in Ohio. That's the lowest since 1994.
The number of death sentences imposed has declined nationally over the last 25 years to a modern-day low of 73 last year.
"I know some legislators who have very strong feelings about the death penalty, but in view of what has been happening, I think it's time to take a look at it," said Sen. Edna Brown (D., Toledo), whose own bills to do away with capital punishment have gone nowhere.
"Maybe it's time for a new conversation," she said.
Among Ohio's neighbors, Pennsylvania, Indiana, and Kentucky have the death penalty. Michigan and West Virginia do not.
Ohio hit a post-1999 peak of 8 executions in 2010. This year will be the 1st since 2000 that no executions have taken place.
Source: Toledeo Blade, July 19, 2015
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