COLUMBUS, Ohio — The state has violated federal and state law with the method it uses to obtain execution drugs, lawyers for several death row inmates in Ohio said in a court filing.
Ohio Gov. Mike DeWine has delayed all of the executions scheduled this year after a U.S. magistrate judge sitting in Dayton likened the state’s execution protocol to torture in January. The 6th U.S. Circuit Court of Appeals in Cincinnati in September reversed the judge, Michael R. Merz, on that matter. But DeWine has delayed subsequent executions, saying the state can’t get drugs to carry them out.
Now lawyers for the inmates are saying that the method Ohio used to get execution drugs under DeWine’s predecessor, former Gov. John Kasich, was illegal and it will continue to be so if DeWine restarts executions without telling drug makers what their product is going to be used for.
They said in a filing that the state’s attempt to keep from disclosing the identity of an Ohio Department of Rehabilitation and Correction employee involved in getting the drugs “is made in support of Ohio’s attempts to obtain execution drugs through misrepresentation, fraud, deception, or subterfuge, and to avoid disclosures about the intended recipient (Ohio DRC) and purposes (human execution) of the drugs they obtain, which defendants are obligated to disclose as a matter of both state contract and federal (and state) laws.”
The Dispatch in March reported on how the prisons agency has gotten around drug makers’ and distributors’ objections by ordering the chemicals to be used in the death chamber through the Ohio Department of Mental Health and Addiction Services and then quietly transferring them to the Southern Ohio Correctional Facility, where the death chamber is located. Records later obtained by the paper show that drug makers repeatedly warned the state not to use their products in executions and that the state ignored those warnings.
In a telephone hearing held on Oct. 23, Merz wanted lawyers for the state to determine whether any of the drugs used in the Ohio protocol falls under the U.S. Controlled Substances Act and whether the state is required to make any disclosures when it buys those drugs. In its response, the state said one drug in the current three-drug protocol — the sedative Midazolam — is a Schedule IV controlled substance. The state’s lawyers also said that the Department of Mental Health and Addiction Services has no duty to tell those supplying the drugs that they’re headed for the death chamber.
“It has been mistakenly alleged that malfeasance may have occurred when the intended use of the drugs was not disclosed during the state’s acquisition of the drugs,” they wrote. “The laws governing practices of licensed entities and drug procurement processes do not require such disclosure.”
But lawyers for the death row inmates pointed to language in the Controlled Substances Act, which says “it shall be unlawful for any person knowingly or intentionally — to acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge.” They compared Ohio’s method of getting to execution drugs to a person who swipes a doctor’s prescription pad and uses it to get controlled substances for no medical purpose.
Further, the inmates’ lawyers said, the state is violating its own written agreements with suppliers such as Midazolam maker Hikma Pharmaceuticals when it diverts the drug to the death chamber. It’s also violating state law because controlled substances can only be dispensed with a valid prescription and Ohio law says a “prescription, to be valid, must be issued for a legitimate medical purpose,” the attorneys wrote.
The lawyers conceded that court has already ruled that the inmates don’t have to power to enforce state and federal law when it comes to controlled substances. They said they wanted to stop the court from hiding the identity of the corrections employee involved in obtaining the drugs in ways “that seemingly constitute actions in violation of federal and state criminal laws.”