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October 9, 2015

In defense of Ohio officials trying to figure out how to get execution drugs legally

This new AP story, headlined "Ohio Challenges FDA's Stand on Execution Drug," provides more details and context for the notable letter sent today by Ohio officials to the FDA (first reported here). Here are excerpts (with my bold emphasis):

With two dozen scheduled executions in limbo, Ohio sent a forceful letter to Washington on Friday asserting that the state believes it can obtain a lethal-injection drug from overseas without violating any laws.

The letter to the Food and Drug Administration stopped short of suggesting Ohio is moving forward to obtain the powerful anesthetic sodium thiopental. However, the state asked to begin discussing with federal officials about acquiring the substance legally.

The FDA had warned Ohio in June that importing the restricted drug could be illegal as a result of recent federal court decisions, setting up the latest roadblock to carrying out the death penalty.

Ohio hasn't executed anyone since January 2014, when condemned killer Dennis McGuire gasped and snorted repeatedly during a 26-minute procedure with a two-drug method that had yet to be tried. Ohio abandoned that method in favor of other drugs it now can't find.

Pharmaceutical companies have discontinued the medications traditionally used by states in executions or put them off limits for use in lethal injections. Stephen Gray, chief counsel for the Ohio Department of Rehabilitation & Correction, said the state has no intention of violating the law to obtain such drugs — but "the responsibility to carry out lawful and humane executions when called upon by the courts to do so is enormous, and it is a responsibility that ODRC does not take lightly."

Death penalty opponents have seized on trouble with lethal injections, as in McGuire's case, and difficulty in obtaining drugs as further justification for ending it.  Supporters of capital punishment encourage states to continue to pursue legal avenues for getting the drugs — or find alternatives — so that condemned killers can be brought to justice.

Ohio's latest correspondence comes as the state is set to resume executions in a little over three months. The state is scheduled to execute Ronald Phillips on Jan. 21 for raping and killing his girlfriend's 3-year-old daughter in 1993. Another 23 executions have been scheduled into 2019.

In part because I know and respect, both professional and personally, a number of Ohio executive officials, I have highlighted parts of the story above that I suspect may have led many of them to feel duty-bound to explain to FDA why Ohio thinks it legally could (and perhaps sensibly should) seek to import lethal injection drugs.  Ohio has a long (and sometimes ugly) history with its lethal injection protocols, but Ohio officials have always seemed (at least to me) to be willing and eager to make reasonable efforts to adjust its execution protocols in order to try to carry out lawful death sentences in the most humane way possible.  I perceive that an effort to find a legal way to import sodium thiopental is another example of Ohio officials making this effort.

Of course, opponents of the death penalty are often quick to say that no execution is humane and that Ohio's troubles with executions protocols and drug acquisition provide further reasons for the state to get entirely out of the capital business.  Ironically, I suspect many Ohio executive officials personally share this perspective, especially because their jobs would surely get easier if they did not have to worry about the next scheduled execution (or the 23 others right behind it).  But all executive officials, short of perhaps Ohio Gov John Kasich, are duty-bound to apply the existing law enacted by Ohio's elected representatives, not the law as would serve their own personal interests.  (Indeed, in neighboring Kentucky, Kim Davis recently highlighted the ugliness that can ensure when executive officials seek to elevate personal law over the actual law.)  

Consequently, unless and until the Ohio General Assembly repeals the death penalty or Gov Kasch uses his clemency authority to create an execution moratorium, it strikes me as defensible (and arguably obligatory) for Ohio executive officials to look to secure drugs needed for execution by any and all lawful means.  And it will now be especially interesting to see if FDA official will be willing and able to work with Ohio officials to help the state lawfully secure execution drugs (assuming, as I think all should, that this is what Ohio would like to be able to do).

Prior related post:

October 9, 2015 at 03:23 PM | Permalink


Judge Leon's order shouldn't impact Ohio, since Ohio was not a party. Ohio should politely tell the FDA to GFY and that any attempts to seize Ohio thiopental will be rejected.

In a sane administration, the FDA head would be out of a job after this stunt.

Posted by: federalist | Oct 9, 2015 3:48:13 PM

There is a range of issues here and since the author of this blog and others (to various degrees) seem to question the good faith of "opponents of the death penalty" and what they are "quick to say," it is useful to note this.

EVERY time some specific issue is addressed in this area or abortion or guns or whatever hot button issue is involved need not be a matter of all/nothing. There steps. Those not too happy with established law in public service can and do carry out their public duties professionally. And, among this periods of "ugly history" (not my words), I assume without more that the Ohio officials are here acting in good faith. This I say while also wondering if the heavy effort here is really word the candle. But, I'm not an Ohio official.

Meanwhile, federal officials have their own duties, including regulating the entry of drugs from overseas, factoring in court action. I don't know what level of "assistance" is warranted here, but it can follow how it works with states and other parties in importing drugs for other purposes, including those that might run into legal complications. I assume there are normal agency and court procedures to weigh each side's concerns here.

Posted by: Joe | Oct 9, 2015 6:22:49 PM

ETA: For instance, if some state had trouble obtaining drug for legalized euthanasia, some future conservative President or agency head should not wrongly inhibit entry of drugs over state and international borders. OTOH, if there are legal complications involved, a specific state might run into certain difficulties. Again, this issue is not merely about the death penalty and though the specific issue will color the situation, there are overall principles involved.

Posted by: Joe | Oct 9, 2015 6:26:22 PM

The Food and Administration has jurisdiction over drugs that are for treatment of disease. We cited the law and its definitions enabling the work of the FDA.

These substances are poisons for the purpose of execution, not for the treatment of disease. I suggest to the Attorney General of Ohio to have a federal court enjoin the FDA from any interference with either the production or the importation of these poisons.

All nit picking objections are pretextual (a false use of the law). Any of these pretextual motions should result in all costs assessed against the personal assets of the lawyer making them.

Posted by: Supremacy Claus | Oct 9, 2015 8:52:13 PM

I do not believe there is any purpose served in debating people like Joe. Direct action groups of victim families should find him, and kick his ass.

Posted by: Supremacy Claus | Oct 9, 2015 8:54:10 PM

Joe has to disclose the fraction of his income or that of his employer coming from government. His defense of criminals is mere advocacy for big government and rent seeking.

Posted by: Supremacy Claus | Oct 9, 2015 8:55:35 PM

Why do they not just overdose the human on heroin? Illegal heroin. Or shoot them? Or hang em high? The reason is that they wish to appear to be civilized when they breach the Sixth Commandment of Thou Shalt Not Kill. When the humans involved croak they may get an interview at the Pearly Gates with Saint Peter. They will not get into heaven. This applies to all the civizens of a killing state.

Posted by: Jack Mehoff | Oct 10, 2015 10:27:20 AM

When "Sixth Commandment" is cited here, what does it mean? For instance, the same book that lists the commandment lists a range of death eligible crimes. Also, killing in battle is deemed acceptable. Are the people speaking here Jainists? Is killing never justified?

I think the commandment is "thou shall not murder" -- that is kill illicitly. It is true that society tries to kill in the most civilized way possible. At some point, killing is a nasty business, but civilization is about making something of an effort. Thus, we have laws of war, even as we do nasty things. Locking people in little cages is pretty harsh too but we try to do so somewhat civilized.

Choosing by some method that at the end of the day is pretty arbitrary a few murderers to execute, and repeatedly having a hard time doing so (and not just because of mean old defense attorneys and liberals), doesn't seem worth the candle to me personally. But, the people disagree, though they are conflicted enough to also support this drawn out dance that ultimately only results in a relatively small number of people executed. Eventually.

Posted by: Joe | Oct 10, 2015 11:09:42 AM

What criminal and lawyer apologist, Joe, is not saying, is the real purpose of the frivolous nit picking and the collusion of judges. Lawyer business. $billions are being sucked from the taxpayer on the death penalty appellate business, and the Supreme Court has it perfectly tuned to maximize this stealing.

Posted by: Supremacy Claus | Oct 11, 2015 1:17:40 AM

The Sixth Commandment is written in stone. The alteration to Thou Shall Not Murder is a Sears Roebuck version of the Bible. That version fits in with the Y'all Can exception to Thou Shalt Not Kill which stands for the premise that it is ok for a State to kill a human. Tell that to Saint Peter when you go for your interview at the Pearly Gates. All the residents of the State of Texas are probably destined to go to Hell.

Posted by: Liberty1st | Oct 11, 2015 10:47:04 PM

The sixth commandment is found in the same place where a range of things are subject to the death penalty. Just plain hard to take some around here seriously but the 'thou shall not kill' line is a standard trope. But, taking stuff out of context and only focusing on what one wants is fairly standard too.

Posted by: Joe | Oct 12, 2015 12:11:22 AM

Lib. What about the poor Amalekites, whom the Lord commanded be eradicated down to the last kitten, as enemies of the righteous Israelites?

Posted by: Supremacy Claus | Oct 12, 2015 12:46:52 AM

Lib. What about the poor Amalekites, whom the Lord commanded be eradicated down to the last kitten, as enemies of the righteous Israelites?

Posted by: Supremacy Claus | Oct 12, 2015 12:46:52 AM

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