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November 11, 2014

Legislation to get Ohio back on track with lethal injections being fast-tracked

As reported in this local article, headlined "Death-penalty reform bill would protect execution drug makers, physicians who testify," it appears that the state legislative process is moving forward to enact new regulations to help Ohio get back into the business of executions. Here are the details (with my emphasis added at the end):

Makers of Ohio's lethal-injection drugs would be kept anonymous, and physicians who testify about the state's execution method couldn't have their medical license revoked, under House legislation introduced Monday.  Attorney General Mike DeWine has said that lawmakers need to pass the reforms if Ohio is to resume executions next year, once a court-ordered moratorium ends.

Ohio, along with many other states, has been struggling to settle on an execution method, as many large pharmaceutical companies have refused to continue selling drugs used for lethal injection.  The state's current two-drug cocktail is being challenged in court and has been used in controversial executions in Ohio and Arizona.

House Bill 663 would keep secret the identities of compounding pharmacies, small-scale drug manufacturers that create individual doses of lethal-injection drugs on demand.  The proposed change is a sign that state officials could turn to compounding pharmacies for lethal-injection drugs that courts have upheld but that larger companies have stopped selling, such as pentobarbital.  Rep. Jim Buchy, a Greenville Republican co-sponsoring the bill, said the measure would protect compounding pharmacies from lawsuits.

Another proposed change in the bill would prevent the Ohio State Medical Association from revoking or suspending the license of any physician who provides expert testimony on the state's death penalty.  Such immunity is needed, supporters say, because the state is worried that doctors will refuse to testify in defense of Ohio's lethal-injection protocol for fear that they'll run afoul of medical ethics....

House Speaker Bill Batchelder, a Medina Republican, and Senate President Keith Faber, a Celina Republican, each said last week they plan to pass the legislation.   "That is something that we cannot leave in abeyance, otherwise we're going to have people who pass away prior to execution," Batchelder said.

I have a inkling that Speaker Batchelder's comments emphasized above may have been taken a little out of context, as the quote makes it seem he considers it is essential to fix quickly Ohio's machinery of death so that prisoners do not die on their own before being able to be killed by the state.

November 11, 2014 at 05:31 PM | Permalink

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Comments

When transferring the drugs, they also are allowed to wear black hoods.

Is there any evidence that merely testifying about disagreement with current ethical laws will lead to revoking of a license? Isn't a medical license a sort of public thing for which that would violate the 1A somehow?

Anyway, anonymity will further risk of error. As to immunity for the companies, what sort of immunity? This sounds like negligence promotion device.

Posted by: Joe | Nov 11, 2014 6:26:23 PM

I have serious problems with keeping the procedure a secret. I think recent history has shown that the state will always exaggerate the standards they operate at and cannot be trusted at their word on this issue.

I have no problem with the law protecting doctors from retaliation for their participation. I wasn't aware that was an actual problem but, either way, it's reasonable to have that protection.

Posted by: Erik M | Nov 12, 2014 7:49:41 AM

I don't know that they are going to speed up anything by passing a law preventing the public, defendants, and courts from accessing information that could be used to evaluate the reliability/predictability of these drugs. Given that the 8th Amendment takes precedence over state law, this won't stop a court challenge if the court thinks it needs to know the source of the drugs to evaluate the claim. If anything, it will just tank the credibility of the state in the proceedings -- judges never like litigants who seem to be hiding things. Really, I would think that transparency would be a better policy. After all the substantive standard under Baze is pretty forgiving. It seems that it is mainly due process concerns arising from the states' secrecy and stonewalling that have been antagonizing the courts in these cases.

But then I don't really understand the local politics. Sometimes the point of this kind of legislation is not so much to actually speed executions as to grandstand against the federal courts/Obama/other people who allegedly coddle criminals. Or maybe they just can't get any of the compounding pharmacies to sell to them without the secrecy. (What about a law that broadly indemnifies the drug maker for any costs related to court proceedings, complying with subpoenas, etc.?)

Posted by: anon | Nov 12, 2014 11:02:18 AM

"Really, I would think that transparency would be a better policy. After all the substantive standard under Baze is pretty forgiving. It seems that it is mainly due process concerns arising from the states' secrecy and stonewalling that have been antagonizing the courts in these cases."

I'm not exactly neutral here, clearly, but this seems right to me. Society as a whole is supportive of the death penalty but are repeatedly wary about the whole thing. Like the cover-up being the worse thing in various political scandals, less transparency here I think will give the other side more ammo.

Anyway, to the degree it is just a gratuitous protection or like various things, a redundant safeguard to ease things along, immunity for doctors would be okay to toss in. Guess it depends on the wording.

Posted by: Joe | Nov 12, 2014 11:10:49 AM

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