Quit the botching, Ohio: exploring the flaws in the Ohio execution protocol and the need for change.

• Author: Wood, Rachael

1. INTRODUCTION 95 II. BACKGROUND 98 A. Ohio's Death Sentence Statute: A Historical Approach 99 1. A Glimpse into Ohio's Death Penalty Process 99 2. Dennis McGuire: Ohio's Most Recent Execution 102 B. A Rocky Road with Lethal Injection 103 1. Ohio: One Too Many People Have Suffered as a Result of Ohio's Lethal Injection Procedures 104 2. Ohio: Recent Issues with Lethal Injection 105 C. Compounding Pharmacies: A Way for Prisons to Bypass Regulation 107 III. ARGUMENT: OHIO SHOULD PURCHASE DRUGS ONLY FROM FDA-REGISTERED OUTSOURCING FACILITIES 108 A. Ohio and Oklahoma Have Used the Same Drug That Resulted in Botched Executions 110 B. Compounding Pharmacies and Secrecy Statutes Do Not Provide Any Solutions 111 1. Ohio 112 2. Oklahoma 113 3. Secrecy Statutes Provide No Cure to Botched Executions 114 C. Solutions 115 1. Outsourcing Facilities Versus State-Regulated Compounding Pharmacies 115 2. Compounding Pharmacies Have Been Linked to Pain and Suffering 121 IV. RECOMMENDATIONS TO THE OHIO DEPARTMENT OF REHABILITATION AND CORRECTION 123 V. CONCLUSION 124 I. INTRODUCTION

   At 10:27 a.m. the Warden held a microphone up to Dennis McGuire and asked for his last words. (1) Dennis McGuire mouthed, "I love you" and "I will see you on the other side" to his wife and daughter sitting in the observation room, minutes before he was to be executed. (2) What normally takes eight minutes, (3) took two and a half times as long (4)--a full 20 minutes, as Mr. McGuire began writhing in pain, pushing and arching his back while simultaneously pushing against the gurney. (5) He was able to get his back and neck off the gurney three to four inches, even though he was strapped down at the waist, feet and hands. (6) During the twenty-minute execution, members of the execution team had horrified looks on their faces with both wide eyes and shocked expressions. (7) At 10:53 a.m., the Warden pronounced Mr. McGuire dead and another member of the execution team, who had seen the botched execution unfold mouthed "I'm sorry" to Mr. McGuire's family in the observation room. (8)

   Ohio's statute for carrying out the death sentence (9) lacks a critical piece of information--where to purchase drugs used in lethal injections. Before the supply ran out, Ohio used the drug pentobarbital, (10) but switched to a two-drug combination of midazolam and hydromorphone (11) for the execution of Mr. McGuire. Previous suppliers from overseas are refusing to sell these drugs to prisons, including prisons in Ohio. (12) As a result, the Ohio Department of Rehabilitation and Corrections ("ODRC") has turned to compounding pharmacies (13) for a new source of drugs. (14) However, compounding pharmacies are highly problematic... because they are non-FDA regulated which means that regulation is left to the states. (15) Essentially, compounding pharmacies "tend to differ from one state to the next, making it difficult to ensure that compounded drugs are held to consistently high standards of quality, safety and effectiveness." (16)

   Ohio's statute is similar to the death sentence statute in Oklahoma, (17) as both states statutes are silent on where to obtain drugs used in lethal injections. Notably, both states have experienced recent botched executions. (18) In response, Judge Frost from the Southern District of Ohio ordered a stay of all executions in the state until January 15, 2015. (19) The first execution under Ohio's newly adopted execution protocol (20) is scheduled for January 21, 2016. (21) This note argues that the ODRC should not obtain lethal injection drugs from unregulated compounding pharmacies. Ohio should only purchase drugs from an FDA-registered outsourcing facility. Part II explores the death sentence statute in Ohio and the use of compounding pharmacies. Part III compares Oklahoma's statute in conjunction with Ohio and illustrates the adverse effects by utilizing compounding pharmacies. Part IV proposes recommendations to Ohio's execution protocol. Part V provides a conclusion.

2. BACKGROUND

   Ohio's implementation of the death sentence statute (22) is minimal in prescribing the precise manner for carrying out the lethal injection protocol. Instead, Ohio's execution protocol, designed and written by the Warden himself, designates the Warden to be in charge, with the assistance of medical personnel, for carrying out all death sentences. (23) Currently, the execution statute simply requires that the:

   [D]eath sentence shall be executed by causing the application to the person, upon whom the sentence was imposed, of a lethal injection of a drug or combination of drugs of sufficient dosage to quickly and painlessly cause death. The application of the drug or combination of drugs shall be continued until the person is dead. (24) The statute is silent on where to purchase these drugs, which has afforded the ODRC, specifically the Warden, enormous freedom in purchasing these life-ending drugs. (25) As a result, Ohio has suffered negative consequences from utilizing compounding pharmacies to purchase these drugs, which were brought to the public light by the unfortunate botched execution of Dennis McGuire. (26)

   1. Ohio's Death Sentence Statute: A Historical Approach

      Ohio has employed three different methods of capital punishment: public hangings, electrocution, and the current method of lethal injection. (27) When Ohio was first recognized as a state in 1803, executions were performed by public hangings, before Ohio switched to the electric chair. (28) In 1993, inmates on death row could choose between the electric chair and lethal injection. (29) A few years later in 2001, Ohio Governor Bob Taft signed a bill that eliminated the electric chair completely, leaving lethal injection as the only option. (30)

      Before a death sentence is imposed on a defendant, there are numerous steps throughout the judicial process that must be satisfied. First and foremost, Ohio courts that seek the death penalty, or a life sentence, must comply with the Ohio Revised Code ("ORC") section 2929.04, (31) which specifies a number of aggravating and mitigating factors to be evaluated by either a trial judge, jury, or three judge panel. (32) To date, Ohio has executed 393 convicted murderers by a combination of the three methods. (33)

      1. A Glimpse into Ohio's Death Penalty Process

         In Ohio, in order for the prosecutor to seek the death penalty, certain aggravating factors must be specified on the indictment and proven beyond a reasonable doubt. (34) For example, one aggravating factor purports that:

         The offense was committed while the offender was committing, attempting to commit, or fleeing immediately after committing or attempting to commit kidnapping, rape, aggravated arson, aggravated robbery, or aggravated burglary, and either the offender was the principal offender in the commission of the aggravated murder or, if not the principal offender, committed the aggravated murder with prior calculation and design. (35) In addition to weighing the aggravating factors, the trier of fact must also consider numerous mitigating factors, which include the "nature and circumstances of the offense, history, character, and background of the offender." (36) The trier of fact must also evaluate whether the offender was under duress or provocation, and consider the lack of an offender's prior criminal history. (37) Lastly, the trier of fact must decide whether the aggravating factors outweigh the mitigating factors in issuing a death or life sentence.

         There are currently 393 men and one woman sitting on death row in Ohio. (38) In order for a criminal defendant to be subject to capital punishment there are three main requirements: he or she must be at least 18 years old when the offense was committed, the indictment must charge the defendant with aggravated murder plus an aggravating circumstance specification, (39) and he or she must not be mentally retarded. (40) In capital punishment cases, trials are split into two phases--"the guilty phase and the sentencing or mitigation phase." (41) A criminal defendant has a right to a trial by jury during both phases of the trial. (42) However, the defendant has an option to waive his right to a jury trial such that a three-judge panel will decide whether the defendant is guilty and impose a sentence. (43) Before a criminal defendant can be sentenced, the prosecutor must prove beyond a reasonable doubt the defendant committed aggravated murder, in conjunction with an aggravating circumstance. (44) Furthermore, the aggravating circumstance(s) must outweigh any mitigating circumstances. (45)

         A criminal defendant also has the option to file a petition for a writ a habeas corpus. (46) A writ of habeas corpus orders the custodian of an individual in custody to produce the individual before a court either to inquire about the individual's detention, to testify, or to appear for prosecution. (47) Typically, an inmate files a petition for a writ of habeas corpus to contest: the way the sentence is being carried out, if that person is in custody because of something other than a judgment of conviction, or the person is alleging they are being illegally detained in immigration custody. (48)

         Once a criminal defendant exhausts all possible appeals, (49) the defendant typically sits on death row for several years, (50) before he or she is put to death. The Warden is responsible for carrying out the death sentence and must abide to the procedures prescribed in the Ohio execution protocol in addition to any statutory requirements. (51) A medical team of three people assists the Warden and at least two members must be authorized to administer drugs under Ohio law. (52) All executions in Ohio take place at the Southern Ohio Correctional Facility, located in Lucasville, Ohio. (53)

      2. Dennis McGuire: Ohio's Most Recent Execution

         Dennis McGuire experienced horrific complications during his execution in January 2014. (54) Keeping in mind the end result of this execution...