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COLUMBUS — Nearly four years after it became the first state to execute an inmate with a single drug, Ohio is poised to break ground again next month as the first to try a unique drug combination after its first choice became unavailable.
The state said Monday it does not have enough of the sedative pentobarbital, either through its traditional manufacturer or a compounding pharmacy that would replicate it on demand, to carry out the scheduled Nov. 14 execution of Ronald R. Phillips. Instead, it will fall back on Plan C sooner than expected.
It plans to use massive overdoses intravenously of two backup drugs, the sedative midazolam and morphine-derivative hydromorphone, a combination never used in the United States.
Hydromorphone never has been used in any execution. Midazolam was used once, and that was a week ago in Florida as part of a three-drug process.
“It’s dizzying how many changes have occurred in the past year with states switching,” said Richard Dieter, executive director of the Washington-based Death Penalty Information Center. The center does not take a position on the appropriateness of capital punishment.
“The landscape is changing, and the recipient of all of this is a human being,” he said. “Even if he’s to be executed, you would expect a more reasoned, careful, researched, best-practices approach. In the medical world, this is not the model they would have used.”
These are drugs the state identified several years ago to use as a last resort injected into the condemned inmate’s muscles if it fails to find usable veins through which pentobarbital could flow. That process never has been used.
The revised protocol still has pentobarbital as made by its Danish manufacturer as its priority execution drug. But given that the manufacturer has balked at its use in executions and has moved to block states’ access, the state added the compounded version of the drug as a second option if it can find a pharmacy willing to replicate it.
That hasn’t worked either.
“A compounding source has not been identified at this time,” said JoEllen Smith, spokesman for the Ohio Department of Rehabilitation and Correction. “At this time, DRC has adequate supply of midazolam and hydromophome to carry out the Nov. 14 execution.”
Attorney General Mike DeWine’s office Monday notified U.S. District Court in Columbus of the planned change for the Phillips execution at the Southern Ohio Correctional Facility in Lucasville. Phillips was convicted in the 1983 sexual assault-murder of his Akron girlfriend’s 3-year-old daughter.
On Friday, Phillips’ attorneys challenged the new protocol before U.S. District Court Judge Gregory Frost. In addition to contesting the two-drug backup option, it challenges the concept of buying pentobarbital as a compounded drug directly from a pharmacy.
His attorneys have asked the court to add as defendants in the case the unidentified pharmacists or pharmacies that the state would have make the drug for it.
“The existing Defendants have, with the adoption of the new execution protocol, included these Drug Maker Defendants in a symbiotic relationship necessary to the execution process; the existing ‘Defendants have entrusted the Drug Maker Defendants with enormous — but entirely unregulated and unsupervised — responsibility and discretion as to one of the most important parts, if not THE most important part, of the process, namely the making of execution drugs for the known and intended purpose of using those drugs to execute a particular inmate on a particular date for a particular crime,’ ” the amended lawsuit reads.
In 2009, Ohio became the first state to switch to a single-drug execution, a massive overdose of the sodium thiopental, a barbiturate. But when that drug’s manufacturer objected to its use, Ohio switched to pentobarbital in early 2011, only to run into the same problem.
Ohio used the last of its pentobarbital to execute Harry Mitts, Jr., who killed two people, including a Cleveland-area police officer, 19 years ago.
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