Ohio prisons officials challenge FDA over legality of importing lethal-injection drug

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COLUMBUS, Ohio — 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 U.S. Food and Drug Administration, first reported by The Associated Press, 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 that Ohio and several other states have faced in 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 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.

The FDA also told Nebraska that it couldn't legally import a drug needed to carry out lethal injection. That was about two weeks after its governor confirmed the state had obtained sodium thiopental from India. The U.S. attorney's office there punted the issue to a watchdog agency, saying it wasn't able to determine whether state officials violated federal law in obtaining the drugs.

FDA warnings to Ohio and Nebraska followed a federal court ruling two years ago in a case brought by death row inmates in Tennessee, Arizona and California that found the agency was wrong to allow sodium thiopental to be imported for use in executions.

But after reviewing recent court decisions cited in the FDA's warning letter, Gray contended Ohio would be able to legally import sodium thiopental as long as it follows a five-step process for obtaining the drug: that it comes from an FDA-registered source; is on that source's list of drugs in commercial distribution in the U.S.; is not misbranded; is not adulterated; and is in a shipment examined by the FDA.

A message was left with the FDA seeking comment.

Doug Berman, an Ohio State University law professor and death penalty expert, said it remains unclear whether the FDA's injunctions in the realm of execution drugs are legally justifiable.

"My sense is that the Food and Drug Administration, both from Congress' perspective and others, was never designed to create an additional impediment to states trying to carry out lawful sentences," Berman said.



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