When it comes to executions, Ohio is in a bind.
The state has put all executions on hold for nearly two years as state officials look for a lethal-injection drug that’s both available and isn’t likely to be thrown out by a court as cruel and unusual punishment.
Earlier this week, Gov. John Kasich pushed back resuming executions another year, to 2017, to give officials more time.
Ohio ran out of its usual lethal-injection drugs two years ago because European pharmaceutical companies blocked further sales on moral and legal grounds. Since then, state officials have tried a number of tactics, all of which have run into obstacles.
So what does Ohio do now? Here are the state’s options:
1) Continue the current search
There’s no shortage of the two lethal-injection drugs Ohio is looking to use – either pentobarbital or sodium thiopental. The problem is finding someone willing to sell them to Ohio for use in executions.
State officials could find a compounding pharmacy willing to make doses of the drugs, though so far all such companies in Ohio have refused on ethical grounds or fears they would be identified and stigmatized.
Or they could find a way to obtain the drugs from other countries, despite the U.S. Food and Drug Administration’s warning that it would violate federal law. Before a federal court ordered the FDA to monitor and block imports of execution drugs, Nebraska illegally bought 300 doses worth of sodium thiopental from India, though state lawmakers voted to abolish the death penalty before any could be used.
Ohio Department of Rehabilitation and Correction spokeswoman JoEllen Smith told Buzzfeed that her agency has not communicated with Nebraska’s supplier, HarrisPharma, though she wouldn’t say if state officials purchased drugs directly or indirectly from the company or its owner. Smith didn’t immediately reply to an email seeking to confirm Buzzfeed’s story.
In a letter to the FDA earlier this month, the Ohio prison agency’s General Counsel Stephen Gray wrote that “it would be lawful and permissible” for Ohio to import execution drugs, as long as the seller registers with the FDA, notifies the FDA that it is selling the drugs in the U.S., doesn’t mislabel or adulterate the drug, and allows federal officials to inspect the shipment.
“Ohio has no intention of breaking any federal laws or violating any court orders in an attempt to procure the legal drugs necessary to carry out constitutionally approved and court-ordered death sentences,” Gray stated.
The prisons department has consistently declined to provide details about how its search is going. “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,” Director Gary Mohr said in a statement.
Texas has been able to procure pentobarbital, though under a state execution secrecy law, it doesn’t have to say where it got the drug. State officials claim they bought the drug from a compounding pharmacy, though a lawyer for a condemned Oklahoma inmate alleged that Texas made the drug itself.
Texas has also admitted to sending three vials of pentobarbital to Virginia for executions.
2) Pick different lethal-injection drugs
Another option for Ohio is to keep lethal injection but find different drugs to use.
For example, it could look to get barbiturates such as thiamylal, methohexital. secobarbital, or phenobarbital.
Ohio also has the option of turning back to the drugs it used to execute Dennis McGuire in 2014: midazolam and hydromorphone. But while the U.S. Supreme Court ruled in June that midzolam is constitutional, its use in controversial executions in Ohio, Arizona, and Oklahoma makes it unlikely that it will be brought back in the Buckeye State.
But Dunham said if Ohio officials choose this path, they’ll still have to find someone willing to sell to do business with them. While Ohio was able to purchase new drugs for McGuire’s execution, Dunham said the media coverage about his death and other controversial executions has made drug makers far more wary about selling substances that could be used to kill people.
3) Change execution methods
Ohio lawmakers are now talking about dropping lethal injection altogether and reviving execution methods such as the electric chair and hangings.
“We’ve got plenty of electric and plenty of rope,” state Sen. Bill Seitz, a Cincinnati Republican, told the Associated Press.
Senate President Keith Faber, a Mercer County Republican, told reporters Wednesday that “If we can’t get the drugs that our [execution] protocol calls for, either we need to change our protocols or we need to think about other solutions.
“And there are a lot of people out there talking about other solutions. I’ve heard everything from using heroin to using nitrogen to going back to the electric chair,” Faber continued. “That’s a debate that probably we need to have.”
Ohio lawmakers so far haven’t taken any steps to move away from lethal injection other than set up a committee to study the issue. But other states have already taken steps to use different execution methods if they can’t find lethal-injection drugs.
Earlier this year, Oklahoma adopted the gas chamber as its backup execution method. Firing squads and the electric chair are now potential options in Utah and Tennessee, respectively.
Ohio State University law professor Doug Berman said while many state lawmakers talk big about the need to put heinous criminals to death, they’ve done an inadequate job of turning such feelings into workable policies.
“I think the General Assembly is rightly to be faulted for leaving us in this kind of state of limbo,” Berman said. “If they really have the courage of their death-penalty convictions, they ought to be willing to have a conversation about other ways for the state to kill people that they’ve condemned to death.”
But Seitz told Northeast Ohio Media Group that state prison officials didn’t tell lawmakers beforehand that they were encountering problems finding execution drugs and needed to delay resuming executions until 2017.
“We showed last year in December that we’re willing to do what they reasonably request in order to facilitate the administration of the death penalty,” said Seitz, referring to the execution secrecy law that legislators passed. “We make the laws, and we’d like to see the laws enforced.”
4) Abolish the death penalty
Though it’s unlikely that the conservative-dominated Ohio General Assembly will abolish capital punishment altogether, Berman said Ohio’s execution woes may embolden death-penalty opponents in the state to take action.
Some Ohio lawmakers – mostly Democrats – have introduced a number of bills in recent years to abolish the state’s death penalty. But none of them have gone anywhere, as legislative supporters say capital punishment acts as a deterrent and offer justice and closure to victims and their loved ones.
Here are Ohio’s options to address its execution-drug shortage