Ohio said Monday that it will use an untested cocktail of two drugs in an execution scheduled for next month, after reporting that it does not have enough of the drug pentobarbital to carry out the death sentence.
Ohio is among the states that have in recent months reported shortages of pentobarbital, the drug used in 13 states for lethal injections, after the drug’s manufacturer announced last year that it would no longer sell the drug to prisons. The state’s announcement comes amid a debate over the legality of states tapping into alternative markets for supplies of lethal-injection drugs or turning to new, never before used drug cocktails.
The Danish manufacturer of pentobarbital, Lundbeck, banned the sale of its product to prisons in 2011 because of Denmark’s membership in the European Union, which opposes the US practice of capital punishment. The announcement sent states with death rows scrambling: Lundbeck holds the sole license to produce pentobarbital in the US. Most states had enough of the drug to get through to this September. After that, their reserves would expire.
Since then, corrections departments have been pressing for alternative drugs to carry out death penalty sentences. For some states, that has meant turning to a little regulated wing of the pharmaceutical market: compounding pharmacies, which custom brew drugs. Texas and Georgia have announced deals to purchase pentobarbital from compounding pharmacies but are now embroiled in federal lawsuits by death-row inmates, who are challenging the states' right to use the drugs. Pennsylvania and Colorado are also courting compounding pharmacies for lethal injection drugs but have put all executions on hold.
Just South Dakota has so far used drugs from compounding pharmacies to carry out executions. The state executed two convicts with the drugs in October of last year.
Meanwhile, other states have turned to invention, hoping to find a replacement drug for pentobarbital. Pentobarbital itself had been ushered in to replace the drug sodium thiopental in 2011, after its Illinois-based producer said it would not sell the drug to prisons.
Ohio says it will use a combination of the drugs midazolam, a sedative, and hydromorphone, a painkiller, in the execution of Ronald Phillips, scheduled for Nov. 14. The state said on Monday that it had looked for a compounding pharmacy as an alternative pentobarbital supplier but had been unsuccessful.
Both tactics of procuring lethal injection drugs have come under fire from anti-death penalty advocates in recent months, The New York Times reported in August. Compounding pharmacies are not subject to us Food and Drug Administration regulation and do not need to receive accreditation from the Pharmacy Compounding Accreditation Board, advocates note. In 2012, an unaccredited compounding pharmacy in Massachusetts was found to be the source of an outbreak of fungal meningitis that infected over 700 people and killed 61 people.
In the wake of the incident, advocates have urged states to hold off on using drugs purchased from compounding pharmacies, saying that unregulated brews of the drug could result in botched executions. Advocates have similarly questioned the use of alternatives to pentobarbital, noting that such cocktails are untested and could cause undue pain to the condemned.
Earlier this month, Missouri Gov. Jay Nixon halted what was to be the first execution in the United States using propofol, the drug that killed Michael Jackson in 2009. Over the summer, the Missouri Supreme Court had approved the use of the drug in the state’s executions. The state has since said it is investigating purchasing pentobarbital from compounding pharmacies.
On Monday, Mr. Phillips's lawyers asked a federal judge to delay the execution, giving them time to contest the state’s right to use an untested drug combination, AP reported.
Phillips was sentenced to death for the rape and murder of his girlfriend’s 3-year-old daughter in 1993.