State officials’ plan to resume executions for the 139 convicted murderers sitting on Death Row could hinge on their ability to obtain a single drug.
Executions have been on hold in Ohio since 2014, when inmate Dennis McGuire took 26 minutes to die after being injected with one of those drugs.
Prior to the ruling, the state had intended to execute three Hamilton County men this year.
Now, however, state leaders might find themselves on a familiar hunt for someone willing to sell a lethal drug for the use of ending a Death Row inmate’s life.
“We are currently reviewing the judge’s order,” JoEllen Smith, the spokeswoman for the Ohio Department of Rehabilitation and Corrections, said. “DRC remains committed to carrying out court-ordered executions.”
U.S. District Court Magistrate Michael Merz in Dayton ruled the state’s use of midazolam wouldn’t clear a constitutional bar of causing “substantial risk of serious harm.”
The state can appeal the decision.
In court arguments, defense attorneys for three death row inmates, all of whom were scheduled to be executed early this year, named the drug they would prefer be used in executions: pentobarbital. Merz agreed that pentobarbital should be used in upcoming executions, and suggested the state should be able to obtain the drug.
“Basically, pentobarbital is much more toxic than midazolam,” said Andrew Norman, a researcher and pharmacology professor at the University of Cincinnati College of Medicine. “(Pentobarbital) is more likely to be lethal by itself … and would be much more suitable.”
Finding a seller willing to give the state that drug, however, won’t be easy, experts say.
Norman said pentobarbital is simply a hard drug to obtain and he's had trouble getting vials for his research at UC in recent years.
The Danish company that manufactures pentobarbital has also banned the sale of its drugs for the purpose of executions. So, state officials would need to find a small compounding pharmacy, which mixes custom prescriptions, to make the lethal injection.
Many compounding pharmacies, however, don’t want the bad publicity that could come with making a death penalty drug, said Deborah Denno, a law professor at Fordham University in New York who has extensively researched the death penalty.
“Sometimes they can get it, sometimes they cannot,” Denno said. “It’s hard to get these compounded drugs. It’s not lucrative; we’re just talking about a few drugs for these executions. A lot of these pharmacies – it’s just not worth even risking.”
Ohio lawmakers have taken steps to encourage compounding pharmacies to produce drugs for executions. In 2015, for example, the state began shielding the identities of compounding pharmacies that provided lethal injection drugs for executions.
That strategy did result in some success: The state brought in shipments of midazolam, rocuronium bromide and potassium chloride late last year, likely thanks to the work of a compounding pharmacy. That’s the three-drug combination the federal judge banned the state from using last week.
Still, one Cincinnati lawmaker believes the state's search for an execution drug is becoming too costly.
"The bottom line is the death penalty is enormously expensive to carry out," said state Rep. Thomas Brinkman, a Mount Lookout Republican who has long opposed capital punishment. "The judge wasn't ruling if we should have the death penalty or not. He's ruling on the manner of it being carried out and I'm just saying that trying to find these methods is very expensive."
The state had scheduled a total of eight men for execution in 2017, including Raymond Tibbetts, Robert Van Hook and Jeffrey A. Wogenstahl from Hamilton County.
Raymond Tibbetts has been on Ohio’s Death Row since 1998, following his conviction on the murders of Fred Hicks and Judith Sue Crawford in Cincinnati.
Tibbetts has been on death row for nearly 20 years and was scheduled for execution on April 12. His clemency hearing was held earlier this month.
During the hearing, victims’ family members described the nearly two decade long wait for his execution as agonizing.
“I beg you to, please, get it done and over with especially so we can stop thinking this very day,” Toni Strausbaugh told the parole board during the clemency hearing. Strausbaugh is the niece of Fred Hicks, who Tibbetts stabbed to death 20 years ago.
The Associated Press contributed to this report.
