Lethal Injection Drug Shortage Causes Lawmakers To Consider Changing Execution Method

Oct 23, 2015

The state has pushed back execution dates for a dozen condemned killers, because of a problem that’s no surprise to anyone in law enforcement or criminal justice – a lack of drugs for lethal injections.

This delay for the 141 people on death row in Ohio comes more than a year after the state had to push back executions when it switched to a single-drug lethal injection after the death of Dennis McGuire.

McGuire was executed in January 2014 by a two-drug mixture that had never been used before. Witnesses reported McGuire choked and gasped in what became the longest execution on record in Ohio.

Since McGuire’s execution, the state has approved two drugs that can be used alone in a massive single dose. Sodium thiopental is no longer made by FDA approved companies, and pentobarbital cannot be used in executions at the order of its manufacturer.

The state is waiting on the FDA to weigh in on its request to bring in the drugs from overseas. Last year lawmakers passed a measure that would allow certain pharmacies to make the drugs without fearing public exposure. But no pharmacies came forward.

Rep. Jim Buchy (R-Greenville) sponsored that pharmacy shield bill, and said he did because he’s a strong supporter of capital punishment.

“The issue is not capital punishment here,” Buchy said. “The issue is being able to carry out the wishes of the courts.”

And that’s a concern for death penalty supporters such as Ron O’Brien, the Franklin County prosecutor. He said the lack of availability of drugs is basically creating a moratorium on the death penalty, and he sees no end to it.

“Right now in Ohio, the threat of dying of natural causes may be greater for those on death row than the carrying out of the sentence that was imposed years ago, it would seem,” O’Brien said.

O’Brien said there are two choices – find ways to carry out lawful death sentences, or repeal the death penalty altogether.

Sen. Bill Seitz (R-Cincinnati) agrees. He said the continuing change in protocol by the prisons department - seven execution drug changes in five years - is a big problem.

“We’ve given them everything they’ve asked for," Seitz said. "And they say, ‘well, now we can’t do it so we want to postpone everything for a year.’ I think that’s a mistake. We have overcrowded prisons, and now we’re going to have them a little bit more overcrowded.”

Some states have adopted backup methods, such as Utah, which added the firing squad, Tennessee with the electric chair and Oklahoma with nitrogen gas.

Senate President Keith Faber (R-Celina) said if the drugs aren’t available, the state may need to consider other options.

“I’ve heard everything from using heroin to using nitrogen to going back to the electric chair,” Faber said. “That’s a debate that probably we need to have.”

Jon Paul Rion represents the family of executed inmate Dennis McGuire in their lawsuit against the state. He’s also on the board of Ohioans to Stop Executions. He backs a total repeal, saying life in prison without parole us a death sentence, just a slower one.

“We’re not going to draw and quarter and hang our people in public squares,” Rion said. “These are comments that might come out in a late night at the barbeque, I guess, if you’re just sitting there talking. But they’re not intellectually serious. If we look at it in a serious way, clearly we can’t take that many steps backward.”

Supporters of capital punishment often dismiss concerns about the brutality of certain means of execution, noting that those who’ve been sentenced to death have committed terribly brutal acts of their own. But Robert Dunham with the national Death Penalty Information Center said changing from lethal injection to some other way could be problematic for some lawmakers and voters.

“If legislatures are going to go that route, then they have to decide whether they and the public have the stomach for that,” Dunham said.

The Department of Rehabilitation and Correction declined an interview request, but provided a statement from director Gary Mohr which reads in part: “State and federal law and Ohio’s court-approved execution policy pose specific limitations concerning how lethal injection can be administered and specifically the drugs approved and used as part of that process…..As long as execution via lethal injection remains the law of Ohio and the Ohio Supreme Court continues to schedule execution dates, we will continue to seek to carry out our solemn duty.”