A low-key announcement that the state’s prisons agency wants a law to protect pharmacies that might mix execution drugs underscores a high-profile problem: The state has enough of its current lethal drug to execute four inmates but has nine executions scheduled after that, including one announced Friday.
The request by the Department of Rehabilitation and Correction immediately raised the question of whether the state would have to move to another method of execution, such as the electric chair or hanging.
But the agency’s chief attorney said such discussion is premature.
“That’s two or three good long steps down the road before we come to that,” DRC general counsel Gregory Trout said after Thursday’s announcement. “I would suggest that pursuing alternate means of acquiring appropriate drugs to humanely cause an execution would be the first step.”
Trout said legislation may be needed to protect compounding pharmacies, which custom-mix medications in doses that generally aren’t commercially available, and without such a law, the state might not be able to obtain execution drugs. He didn’t say when the agency might request such legislation, and the prisons department isn’t commenting.
The state’s supply of pentobarbital, a powerful sedative, expires at the end of September.
Compounding pharmacies have been in the news recently after an outbreak of meningitis linked to the Framingham, Mass.-based New England Compounding Center, which since has closed. The outbreak has killed 45 people and sickened more than 600 nationwide, including 20 in Ohio.
Compounding pharmacies traditionally fill special orders placed by doctors for individual patients, turning out small numbers of customized formulas each week. They typically are overseen by state pharmacy boards.
Ohio law doesn’t allow compounding pharmacies to mix drugs if they’re commercially available.
In 2011, Denmark-based Lundbeck Inc., the only U.S.-licensed maker of pentobarbital, sold the product to another firm. Lundbeck said a distribution system meant to keep the drug out of the hands of prisons would remain in place after Lake Forest, Ill.-based Akorn Inc. acquired the drug.
Ohio law also requires compounding pharmacies to mix drugs in small supplies and says a “prescription shall be compounded and dispensed only pursuant to a specific order for an individual patient issued by a pre- scriber.”
Ohio’s prisons agency wouldn’t be limited to compounding pharmacies in the state. But its request for a change to state law seemed to indicate it hoped to acquire the drug within the state.
Trout quietly laid out the agency’s requests Thursday to members of a state Supreme Court task force considering changes to the death-penalty law but not whether the state should have capital punishment.
Afterward, state Sen. Bill Seitz asked Trout about other options.
“Is there some Supreme Court case that says we can’t, if we choose, go back to firing squad and hanging?” said Seitz, a Cincinnati Republican and criminal justice expert. “There’s no shortage of rope.”
Nothing would stop the state in such circumstances, and the firing squad never has been found unconstitutional, Trout said. But, he added, there are “certain public-policy considerations.”
Those likely refer to the prison system’s willingness to consider a nondrug method, since one of the reasons the state abandoned the electric chair was out of consideration for the stress it would put on prison employees carrying out executions.
Seitz said Friday the prison agency’s proposals would get a fair hearing in the Legislature, which is not inclined to abolish the death penalty.
Ohio is scheduled to use pentobarbital next month to execute Frederick Treesh, who was convicted of shooting an adult-bookstore guard in 1994. Treesh, of Waterloo, Ind., had said he didn’t intend to shoot anyone during the holdup.
The last execution using pentobarbital would be that of Harry Mitts, scheduled to die in September after being convicted of shooting two people, including a Garfield Heights police sergeant, in suburban Cleveland in 1994.
On Friday, the Supreme Court set a 2015 execution date for Robert Van Hook, who was convicted of killing a man he had met in a gay bar in 1985. Van Hook had argued the lawyers who represented him during the sentencing phase of his trial in the Cincinnati killing failed to do an effective job. It’s unknown how he might be put to death.