Legal challenges of new Ohio execution drug likely

COLUMBUS, Ohio (AP) — Ohio’s imminent announcement of a new lethal injection drug is likely to be followed by legal challenges, if past experience in the state and across the country is any judge.

That same experience also suggests Ohio would likely prevail over the long term, but not before executions might be put on hold for a while.

The state is switching drugs because its supply of the drug used most recently in Ohio, the sedative pentobarbital, expired Monday. Additional supplies aren’t available because the drug’s manufacturer has put it off limits for use in executions.

Time and again, the state’s introduction of a new drug or execution process “has given rise to new allegations and often new pleading” in death penalty cases, almost always followed by counterchallenges, federal judge Gregory Frost noted in August after the state said it would likely announce its new drug by Friday.

There’s another option for securing pentobarbital, however, which involves pharmacists mixing individual doses for the state. Pharmacists aren’t affected by the manufacturer’s prohibition because they’re mixing ingredients used to make the drug. Ohio has hinted it is leaning toward this method.

Assuming they have the equipment to mix the drug, and putting aside any moral qualms, pharmacists will have to think long and hard about the possible litigation they might face, said Ernest Boyd, executive director of the Ohio Pharmacists Association.

“When you look at the number of groups ready to have a phalanx of attorneys to attack, it’s not going to be the same decision as, ‘Do I make you a wart medicine?’” Boyd said.

The approach is also ripe for lawsuits after a compounding pharmacy in Massachusetts was blamed for a nationwide meningitis outbreak last year that killed 64 people and sickened hundreds more.

Harry Mitts, who killed two people in 1994 including a police officer, was put to death last week with Ohio’s remaining dose of pentobarbital. The new method, if approved, would be used Nov. 14 to execute Ronald Phillips, sentenced to die for raping and killing his girlfriend’s 3-year-old daughter in 1993.

The state’s switch to pentobarbital in 2011 was quickly challenged legally because it had never been used as an execution drug. Frost put executions on hold that year as part of other criticisms of Ohio’s execution process, including the documentation of the process, but allowed them to begin again in November 2011. The state has executed seven men since then.

Challenges help ensure the state is imposing the ultimate punishment responsibly, said Tim Young, head of the Ohio public defender’s office.

“This is a justice system,” Young said Tuesday. “This is not a revenge system. This is not an inflict-as-much-pain-as-you-can system.”

In Georgia, a lawsuit is challenging that state’s decision to shield information about the compounding pharmacy it commissioned to create doses of pentobarbital for Georgia executions.

In Missouri, hundreds of anesthesiologists have urged the state not to use the anesthetic propofol in an upcoming execution, saying the fallout could jeopardize the availability of the anesthetic relied on by thousands of U.S. hospitals and clinics.

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Andrew Welsh-Huggins can be reached on Twitter at https://twitter.com/awhcolumbus.

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