Death Penalty Update

It sounds a gruesome thing to talk about perhaps, but the media's been abound with death penalty news from around the area for the last month or so. We'll try to summarize some of it.

The Ohio Supreme Court last week announced execution dates for seven condemned inmates, ending what had been a break in capital punishment scheduling. Two additional Ohio inmates already have scheduled execution dates, bringing the total to nine now, and an Enquirer article Tuesday morning said state and county prosecutors have asked Ohio's highest court to schedule executions for up to eight more of Death Row's 157 convicts.

"Last year," that article says, "Ohio set a modern record for executions with eight, the most since capital punishment resumed at Southern Ohio Correctional Facility in Lucasville in 1999. Ohio's total was second only to Texas, which held 17 executions last year; Texas currently has two scheduled for later this month.

While neither Indiana nor Kentucky had any executions last year, Kentucky prison officials last month were combining their search for drugs needed to carry out capital punishment for three longtime death row inmates while also considering holding back-to-back executions. Multiple executions in a single day or on consecutive days are not unprecedented around the country, according to an Associated Press article then, but not within the last five years. Kentucky hasn't carried out back-to-back executions since reinstating the death penalty in 1976. That same article reported that, "back in September, Hospira, the Lake Forest, Ill., company that is the main supplier of sodium thiopental in the United States, said because of a raw material shortage, no more of the fast-acting anesthetic could be produced until 2011. The company then announced it would stop making the drug altogether."

The shortage or unavailability of sodium thiopental was rapid and widespread. State prison officials began looking for sources overseas – which brought up other questions, such as whether the Food and Drug Administration would permit thiopental imports, even though there are no FDA-approved, foreign suppliers of the drugs? The Wall Street Journal last week reported that the FDA had announced "it would permit prison officials to import thiopental to their hearts' content, but would not vouch for the safety and or purity of imported thiopental." That resulted in six death-row inmates from Arizona, California and Tennessee suing the FDA in federal court last week, claiming the agency has violated federal law by allowing states to import thiopental that has not been reviewed for safety and purity. ( Complaint )

U.S. District Court Judge Gregory Frost, of Ohio's Southern District, last year dismissed claims by death row inmate Darryl Durr asserting that "Ohio’s use of sodium thiopentalas a means of execution, as well as the State's possible use of midazolam and hydromorphone as an alternative means of execution, violated the Federal Controlled Substances Act, 21 U.S.C. §§801 et seq., the Federal Food, Drug & Cosmetic Act, 21 U.S.C. §§ 301 et seq., and various federal regulations associated with these Acts." In that case the state had pointed out that, 25 years earlier, the U.S. Supreme Court in Heckler v. Chaney, 470 U.S. 821 (1985), "a number of condemned inmates had argued that the states were violating federal law in using drugs to execute them, and that the Food and Drug Administration (FDA) should prohibit the use of the drugs until the FDA certified that the drugs were 'safe and effective' for execution. The FDA unsurprisingly rejected the prisoners' arguments, reasoning that it was primarily concerned with serious dangers to the public, and that such dangers were not posed by the states' procedures for lawfully executing condemned prisoners." ( Motion to Dismiss )

The Ohio Supreme Court, in answering a certified question from Ohio's Northern District Court, also last year, as to whether there was "a post-conviction or other forum to litigate issues of whether Ohio's lethal injection protocol is constitutional under Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520,170 L.Ed.2d 420 (2008), or under Ohio law?" answered that there was not . The Court further said it would not hear further cases regarding lethal injection until the Ohio General Assembly explicitly expanded state review of death penalty cases. ( See Scott v. Houk )

Last month, the Ohio Department of Rehabilitation and Correction announced that it was switching its lethal injection drug to a single, powerful dose of pentobarbital, a common anesthetic used in surgeries and also by veterinarians to euthanize pets, replacing sodium thiopental. That announcement met with objection by the drug’s manufacturer, Lundbeck, Inc., which was quoted in the Columbus Dispatch as saying, "Lundbeck is dedicated to saving people's lives... Use of our products to end lives contradicts everything we're in business to do."

LastTuesday morning CNN reported the U.S. Justice Department was reviewing a request from 13 states on how to acquire an execution drug no longer made in the United States and whether the federal government would share its supplies with them.


All of which can brings us to the other side of the question.

A recent National Law Journal article (subscription) asked whether Illinois' effort to end capital punishment would help kill the death penalty nationally. The Illinois General Assembly passed legislation last month repealing that state's death penalty which will go into effect in July unless vetoed by Governor Pat Quinn.

Wikipedia reports that as of November 2010, fourteen states & the District of Columbia have already abolished the death penalty. Illinois reinstated capital punishment in 1977, but has been under a moratorium since 2000. "Other states that have ditched the death penalty recently — New Mexico in 2009, New Jersey in 2007 and New York (by court ruling) in 2004 — were not actively executing inmates beforehand, but Illinois executed 12 people since capital punishment was reinstated in 1976."

A Dayton Daily News commentary last weekend said "there’s no need to travel far into the future to find outrage over America's system of capital punishment. A growing chorus of voices is calling for a re-examination of the death penalty in Ohio. Among the most powerful voices: Ohio's Catholic bishops; Ohio Supreme Court Justice Paul Pfeifer; former attorney general Jim Petro; and former state prison director Terry Collins – Justice Pfeifer served as chairman of the Senate Criminal Justice Committee when Ohio debated the capital punishment bill in 1981. (More on Justice Pfeifer's position)

--- and State Rep. Ted Celeste, is said to be drafting our own bill calling for the end to the death penalty here in Ohio.