Ohio Governor Says State Cannot Obtain Lethal-Injection Drugs, Reschedules Upcoming Execution

Ohio can­not obtain drugs to car­ry out exe­cu­tions with­out putting pub­lic health at risk, Governor Mike DeWine (pic­tured) announced on July 31, 2019. DeWine told reporters that phar­ma­ceu­ti­cal man­u­fac­tur­ers are unwill­ing to sell the state drugs for exe­cu­tions and have threat­ened to stop sell­ing med­i­cines to any state agency if they sus­pect the drugs might be divert­ed from ther­a­peu­tic use to use in exe­cu­tions. A sales embar­go could mean that the state would not be able to obtain med­i­cines for treat­ment of patients at vet­er­ans’ homes, state and com­mu­ni­ty drug and alco­hol addic­tion ser­vices, and the Department of Youth Services. 

In recent years, Ohio had pur­chased the drugs it used in exe­cu­tions through its Department of Mental Health and Addiction Services with­out telling the drug sup­pli­ers how the med­i­cines would be used, and then drove the drugs to the state’s exe­cu­tion facil­i­ty. ​“If phar­ma­ceu­ti­cal com­pa­nies dis­con­tin­ue sup­ply­ing med­ica­tions to the state of Ohio for these pop­u­la­tions that are cur­rent­ly being served, it would put tens of thou­sands of our cit­i­zens at risk,” DeWine said. ​“Drugs they need for their health will be put in per­il.” DeWine said that, as a result of these pub­lic health risks, the state may need to recon­sid­er its exe­cu­tion method. ​“So there is a real threat which we have to take into con­sid­er­a­tion, which [the Ohio Department of Rehabilitation and Correction] has to take into con­sid­er­a­tion — that the use of a par­tic­u­lar drug that we would announce that would be used in (an exe­cu­tion) pro­to­col might result in that par­tic­u­lar drug com­pa­ny cut­ting off the state of Ohio,” the gov­er­nor said. DeWine said he plans to meet with House Speaker Larry Householder and Senate President Larry Obhof to dis­cuss what actions the state should take. None of the three men would spec­u­late on the like­ly course of action, but Obhof said, ​“I think all three of us approach the issue with an open mind.”

Later in the day, DeWine announced that the state would not go for­ward with the sched­uled September 12, 2019 exe­cu­tion of Warren Keith Henness. That exe­cu­tion, DeWine said, would be resched­uled for May 14, 2020. It is the sec­ond time DeWine has resched­uled Henness’s exe­cu­tion. In January 2019, the gov­er­nor grant­ed a six-month reprieve to Henness in the wake of a fed­er­al court rul­ing in his case that com­pared Ohio’s three-drug exe­cu­tion pro­to­col to water­board­ing and chem­i­cal fire. Judge Michael Merz wrote, ​“If Ohio exe­cutes Warren Henness under its present pro­to­col, it will almost cer­tain­ly sub­ject him to severe pain and need­less suf­fer­ing. Reading the plain lan­guage of the Eighth Amendment, that should be enough to con­sti­tute cru­el and unusu­al pun­ish­ment.” The state had planned to use a three-drug pro­to­col begin­ning with mida­zo­lam, a seda­tive which has been involved in prob­lem­at­ic exe­cu­tions in sev­er­al states. In February 2019, Gov. DeWine announced that he would halt exe­cu­tions until the state devel­oped a new exe­cu­tion pro­to­col and it was approved by courts. 

A law­suit is cur­rent­ly pend­ing in which Ohio death-row pris­on­er Cleveland Jackson is propos­ing that the state exe­cute him by fir­ing squad, say­ing it would be less painful than lethal injec­tion and avoids the eth­i­cal prob­lems of med­ical pro­fes­sion­als par­tic­i­pat­ing in exe­cu­tions. ​“In a state with extreme­ly lim­it­ed firearms laws and with numer­ous law-enforce­ment agen­cies with offi­cials qual­i­fied as marks­men, there is no con­cern about involv­ing per­sons whose pro­fes­sion­al ethics rules or tra­di­tions impede their par­tic­i­pa­tion,” Jackson said in a court fil­ing. A 2015 poll found that 53% of Americans believe the fir­ing squad is a cru­el and unusu­al method of execution.

Pharmaceutical com­pa­nies have over­whelm­ing­ly opposed the use of their prod­ucts in exe­cu­tion, but states have engaged in sub­terfuge to avoid dis­tri­b­u­tion restric­tions. In 2018, for exam­ple, a Nevada judge found that state offi­cials had ​“inten­tion­al­ly defraud­ed” a drug dis­trib­u­tor by ship­ping drugs to a state office more than 200 miles from the state prison in order to dis­guise their inten­tions to use them in exe­cu­tions. Multiple drug companies also sued the state of Arkansas for mis­lead­ing them into sell­ing exe­cu­tion drugs by imply­ing that they would be used for a legit­i­mate medical purpose.