Ohio state will execute a man next month using an untested combination of drugs, something fraught with ethical and legal questions. Why is this happening and why might the practice become more frequent in capital punishment states?
Ohio’s Department of Rehabilitation and Correction announced earlier this year that, like several other states, it does not have enough of the drug it uses to carry out executions, in this case pentobarbital, for an execution that is scheduled for November — yet despite this would go ahead with the execution by finding another drug or combination of drugs.
The state has now announced it will use a combination of midazolam and hydromorphone to execute Ronald Phillips, aged 40, who is to be killed for raping and killing a three-year-old girl in 1993. The drug combination has not received FDA approval and as a method of execution remains untested, but such drug combinations are increasingly the choice for those states among the 32 that carry the death penalty.
That’s because capital punishment states are facing the prospect of their lethal injection drug supplies drying up.
Why? It’s because those drugs are manufactured in the EU — in pentobarbital’s case, Denmark. Due to strict EU regulations that oppose “capital punishment, torture or other cruel, inhuman or degrading treatment or punishment,” the United Stated has now been told it cannot source such drugs from the EU for the purposes of executions. Now, U.S. supplies have started to run dry with several states already having to find alternatives and others looking at that prospect come the early part of next year.
Rather than put executions on hold, some states have attempted to get around this problem by relying on compounding pharmacies, but that’s seen as risky. Such pharmacies tend to import ingredients from places like China from other Asian markets, and as such there is little government oversight into the precise nature or the effects of the drugs such pharmacies are creating. Indeed, in recent months other states like Massachusetts have moved to more closely regulate compounding pharmacies to prevent incidents like the 2012 meningitis outbreak that was eventually traced back to a compounding pharmacy’s poor hygiene practices.
Nevertheless, the process of allowing physicians to combine or alter drugs for specific purposes is what Ohio will exploit in order to get around its shortage, but there is reason to think the state will have to first answer a lawsuit.
Three death row inmates from Texas have filed a federal lawsuit against the state’s board of corrections and administration saying that the state’s turning to a compounding pharmacy in suburban Houston in order to purchase eight vials of pentobarbital last month could potentially violate their constitutional rights by subjecting them to cruel and unusual punishment if the drug were to fail to kill them painlessly.
The lawsuit states: “There is a significant chance that [the pentobarbital used in the executions] could be contaminated, creating a grave likelihood that the lethal injection process could be extremely painful, or harm or handicap plaintiffs without actually killing them.”
Obviously, the same fears would appear to apply in Ohio’s case and with the added concern that the drug combination being used next month has not previously been used in this exact way before.
Kevin Werner, executive director of Ohioans to Stop Executions, told Reuters that he believes the November 14 execution might be put back as the courts become involved in what seems to be an ever escalating legal battle surrounding the death penalty and the human rights of prisoners.
“Not too many states are going this way but the ones that have are running into challenges and are being held up in court,” he said.
Other states have sought more create solutions to this problem, many of which have also thrown up their own issues.
For instance, Missouri had been contemplating using the powerful anesthetic propofol, a drug commonly used by anesthesiologists throughout the country, in order to carry out executions, one of which was scheduled for October 23. However, Missouri Gov. Jay Nixon halted that execution when it was realized that if propofol was used, the drug could then fall under the EU’s supply ban with the drug’s leading supplier, Germany-based Fresenius Kabi, warning that all supplies and not just those specifically earmarked for executions could then be severely hampered.
So potentially difficult is the minefield of legislation surrounding drug use that Missouri lawmakers are calling for the governor to allow executions by gas chamber, a practice that is still also technically allowed in Arizona, California and Wyoming.
It remains to be seen whether this will ultimately only be a temporary problem for death penalty states, but among death penalty repeal advocates there does appear a shared and growing energy to capitalize on the issue of the drug shortage to advance that it is time to put the death penalty to bed once and for all.
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