As Ohio struggles to come up with an execution protocol that doesn’t raise cruelty concerns, many are asking an obvious question: Why not use fentanyl, the narcotic that tragically has pushed thousands of Ohioans through the euphoria they were seeking and into the death they likely weren’t?
As with so many other issues surrounding the death penalty, the answer is complicated. But a big part of it is that it is becoming increasingly difficult — even bordering on impossible — for states to obtain fentanyl or any other drug used in executions.
Convicted killer Warren Keith Henness of Columbus was slated to be put to death Feb. 13. But Gov. Mike DeWine on Jan. 25 delayed the execution until September, citing a federal judge’s ruling that likened Ohio’s execution protocol to “waterboarding,” and saying it “would feel as though fire was being poured” into a prisoner’s veins.
Magistrate Judge Michael R. Merz said the process seems to violate constitutional protections against cruel and unusual punishment, but he allowed Henness’ execution to go forward anyway. He cited a 2015 U.S. Supreme Court decision requiring convicts such as Henness to propose a viable alternative if they argue that the state’s method of killing them is cruel and unusual.
In addition to the U.S. Constitution, however, DeWine is bound by the Ohio Constitution, which also prohibits cruel and unusual punishment. He also is bound to follow Ohio Revised Code 2949.22 which says the condemned person must be executed with “a lethal injection of a drug or combination of drugs of sufficient dosage to quickly and painlessly cause death.”
Fentanyl seems as if it might fit that description. David Stebbins, the federal public defender who represents Henness and many other Ohio death-row inmates, said he thought state officials might be considering the drug for executions.
When asked whether that was the case, Ohio Department of Rehabilitation and Correction spokeswoman JoEllen Smith would say only, “As directed by the governor, the department has begun assessing options for execution drugs and possible alternative drugs.”
In a regulatory sense, the death protocol is governed by Ohio Department of Rehabilitation and Correction Policy 01-COM-11. It says that “Ohio intravenous executions must use 1) Pentobarbital; or 2) Thiopental sodium; or 3) A 3-drug combination of: a. Midazolam Hydrochloride; and b. One of the following three drugs: i. Vecuronium bromide; or ii. Pancuronium bromide; or iii. Rocuronium bromide; and c. Potassium Chloride.”
Under pressure from anti-death penalty activists, manufacturers stopped supplying Pentobarbital and Thiopental, which led prison officials to start using the three-drug cocktail starting with Midazolam. Merz said medical testimony convinced him that the drug doesn’t block pain and thus the procedure was cruel. That’s what prompted DeWine to delay Henness’ execution.
State officials now face similar problems with every other execution drug, said Robert Dunham, executive director of the Death Penalty Information Center, a Washington, D.C., group that studies the death penalty but takes no position on its general propriety.
Ironically, Nevada planned to execute a man last summer using fentanyl but had to postpone the procedure when the maker of another drug in the cocktail — Midazolam — sued, forcing a postponement. The company, Alvogen, said it “does not condone the use of any of its drug products, including Midazolam, for use in state-sponsored executions,” NPR reported.
The condemned man, Scott Dozier, later killed himself, but Alvogen prevailed in a lawsuit arguing that Nevada got its drugs through subterfuge, Dunham said.
“It doesn’t matter if it’s Midazolam or fentanyl. The use of controlled substances for an execution is not an approved medical use and states are on notice,” Dunham said.
Manufacturers might see the method that Ohio uses to get its drugs as subterfuge.
In a 2014 court hearing, Mary Denise Dean, a pharmacist for the Ohio Department of Mental Health and Addiction Services, testified that she ordered the drugs. She said she had them delivered to the agency’s Columbus headquarters and then drove them to the Southern Ohio Correctional Facility near Lucasville, where the state’s death house is located.
Agency spokesman Eric Wandersleben wouldn’t answer last week when asked whether manufacturers knew that some drugs ordered by the Department of Mental Health and Addiction Services are intended for use in executions.
Doing so is a risky business for the agency, Dunham said.
“One of the things Gov. DeWine may have to deal with is if an agency buys drugs for a legitimate medical use, but diverts them for executions, the manufacturers might direct suppliers not to provide drugs at all,” he said.
Those aren’t the only complications. If state officials can find a supply of fentanyl, it’s a matter of legal dispute whether they can unilaterally change the drug protocol the way they have in the past.
A lawsuit on behalf of Death Row inmate James D. O’Neal in Franklin County Common Pleas Court argues the current execution protocol is invalid because it was put into effect without following state law governing the adoption of such agency rules. Ohio Revised Code 111.15 requires that administrative rules be reviewed by a legislative panel before adoption unless there is an emergency, in which case they can be adopted only temporarily.
O’Neal’s attorney, Assistant State Public Defender Randall Porter, declined to comment on the desirability of fentanyl as an execution drug.
“Our goal is to have (the execution protocol) declared invalid and see where it goes from there,” he said.
Such procedural and supply problems — along with changing public attitudes and expanded opportunities for the condemned to show their innocence — have led to an 85 % decrease in the number of executions since the mid-1990s, Dunham said.
Source: Columbus Dispatch, February 3, 2019
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
