As Ohio looks to revamp its execution protocol, drug makers are increasingly resisting such a use for their products. In the face of the resistance state officials won’t say much about what they’re doing. (AP Photo/Kiichiro Sato, File)
Ohio Gov. Mike DeWine has delayed four executions as the state revamps its death-penalty protocol. But as that work continues, state officials remain secretive about how they’ve managed to obtain deadly drugs from manufacturers increasingly adamant that their products not be used in executions.
In January, DeWine scrapped the existing protocol after a federal judge in Dayton ruled that Ohio’s protocol would “almost certainly subject (the condemned) to severe pain and needless suffering.” Beyond acknowledging that they’re working on a new protocol, state officials are saying little about how they’ve gotten
In 2014, a pharmacist with the Ohio Department of Mental Health and Addiction Services testified that she obtained death drugs for the Department of Rehabilitation and Correction (DRC) and personally drove them to the Southern Ohio Correctional Facility, where Ohio’s death chamber is located. Allen Bohnert, a federal public defender representing death row inmates who are contesting Ohio’s execution protocol, said a corrections employee has testified more recently that the state is still using the procedure — which could be a way of concealing the state’s intended use of the drug from suppliers.
“It allows people at the top of the ladder to purchase the drugs without any DRC fingerprints on them,” Bohnert said.
State officials aren’t admitting anything. In fact, the Department of Mental Health and Addiction Services has yet to provide records of possible communications with suppliers of death penalty drugs in answer to a Feb. 15 Dispatch records request. Despite sworn court testimony, the department won’t even acknowledge its role in obtaining the drugs, much less what justification an agency responsible for fighting drug addiction is using to buy lethal doses.
Federal judge all but urges DeWine to officially delay more executions
February 25, 2019
“We are aware that Governor DeWine has suspended the previous execution protocol and has directed the Ohio Department of Rehabilitation and Correction to recommend a new protocol,” spokesman Eric Wandersleben said. “We defer any additional comment on this matter to the governor’s office and” the prisons department.
DeWine spokesman Dan Tierney deferred “comment to DRC on the progress of their work under this directive.”
JoEllen Smith, spokeswoman for that agency, said it will “take the time necessary to develop a protocol that ensures the process remains lawful, dignified and humane … We cannot comment further because of pending litigation.”
Smith didn’t respond when asked under what legal rational DRC was not responding to questions about the death penalty protocol, which has been the subject of near-constant litigation.
Monday, an expert said that Ohio could face even more litigation if it’s using the Department of Mental Health and Addiction Services as a straw purchaser of execution drugs.
“It raises all sorts of questions about breach of contract and fraudulent inducement,” said Robert Dunham, executive director of the Death Penalty Information Center, a clearinghouse of information related to the death penalty.
In Nevada last year, a judge stopped that state’s department of correction from using the drug midazolam after its manufacturer, Alvogen, sued, claiming the state got the drug from distributor Cardinal Health “surreptitiously, evasively, illicitly and by subterfuge.”
“While Alvogen takes no position on the death penalty itself, Alvogen’s products were developed to save and improve patients’ lives and their use in executions is fundamentally contrary to that purpose,” the company wrote in a legal pleading.
It’s a sentiment that’s become almost universal among drug makers, Dunham said. The Lethal Injection Information Center has declarations by 37 drug makers and distributors on its web site saying that they won’t supply drugs for executions.
In the face of such supply problems, some states are resorting to execution methods that don’t use drugs, although states switched to IV drugs in the first place because they were considered more humane than the electric chair, hanging, the gas chamber or death by firing squad.
Dunham said states that want to continue executing people have their work cut out for them.
“It’s going to be extremely difficult for a state that wants to follow the law,” he said, adding a warning for those that don’t. “It’s a message of hypocrisy if you’re willing to break the law to carry out the law.”
Marty Schladen, The Columbus Dispatch, March 13, 2019
Is Ohio using subterfuge to obtain its execution drugs?