By: Mike Brickner
Harry Mitts, Jr. was executed on September 25, 2013. By Ohio’s standards, a state that has one of the highest uses of the death penalty, Mr. Mitts’ execution was routine. The Ohio Parole Board did not recommend clemency, nor did Governor Kasich grant it. There were no last-minute appeals. However, his execution may prove crucial for Ohio’s broken death penalty system simply because it marked the end of its supply of execution drugs.
Ohio was to make history in November by becoming the first state to use the two-drug combination of midazolam and hydromorphone in the execution of Ronald Phillips. State officials decided to use this experimental combination of powerful sedatives and painkillers after supplies of other execution drugs ran dry. These shortages have caused other states to begin using experimental and downright dangerous methods to carry out executions. Fortunately, Mr. Phillips’ execution was delayed, but we will be back in the same position in January 2014, when the next execution is scheduled.
Ohio is not alone is seeking out new sources of lethal injection drugs. One of the most popular alternatives has been for states to obtain drugs from compounding pharmacies. These drugs are made to order and have no accountability measures or oversight from the Food and Drug Administration (FDA) to ensure the drugs work as they are intended. The result—some batches of drugs from compounding pharmacies may be ineffective and would not have passed traditional FDA approval. This greatly increases the risk that the condemned will experience torturous pain while they are executed. Even those who may strongly agree with the death penalty must admit that conducting state business in secret without accountability is no way for government to run.
Unfortunately, Ohio tends to be a trailblazer in devising new ways to execute people. It was the first state to use a single drug, sodium thiopental and then pentobarbital, in executions. These changes in execution methods underscore the tremendous problems that have plagued Ohio’s lethal injections over the last several years. Most notably, in a short three year span, the state performed three botched executions. Corrections officials eventually executed Joseph Clark, Jr. and Christopher Newton but only after hours of attempts. Clark infamously exclaimed during the procedure, “It don’t work!” while Newton’s execution took so long he had to take a bathroom break. Romell Broom’s execution was suspended midway through because officials were uncertain they could successfully execute him.
In the wake of these problems, Ohio revamped its execution procedures and began to use new drugs to carry out lethal injections. Litigation on these protocols led to a de facto moratorium on executions for over a year.
The recent move by Ohio and other states to experiment with lethal injection drugs is outrageous, but also rather futile. While we continue to experiment with new drugs to execute human beings, we ignore the underlying problems with the death penalty.
Independent reviews by the Associated Press and American Bar Association have raised serious concerns about the fairness of Ohio’s death penalty system. Ohio Supreme Court Justice Paul Pfeiffer, an architect of the state’s modern death penalty has lambasted the current system as a “death lottery” and called for the state to stop executions. Former Ohio Attorney General Jim Petro has recently spoken out regarding the imperfect nature of our justice system, and that the risk of executing an innocent person is too great to continue sentencing people to death.
Ohio Supreme Court Chief Justice Maureen O’Connor has also taken action on the death penalty, creating a taskforce to examine whether the death penalty is fairly applied. The taskforce has met diligently over several months, and expects to release recommendations in the coming months. These recommendations could significantly alter the death penalty in Ohio and bring much needed reform to a hopelessly broken system.
Ohio has executions scheduled through 2015, marking a constant drumbeat of executions over the next two years. New execution drugs and protocols amount to experimentation with human lives, and will almost certainly lead to litigation and future problems in the death chamber. At the same time, Ohio continues to risk executing innocent individuals. While that risk will always be present, it looms even larger absent the reforms under consideration at the Ohio Supreme Court.
The shortage of execution drugs presents a unique opportunity for Ohio to step back from the death penalty and reassess whether it is still needed. Botched executions, wrongful convictions, unfair and arbitrary sentences, and questions about racial and geographic disparities all point toward a system that must al least be reformed, and should be shut down altogether. Now is the time to slow down the machinery of death, not simply tweak a few protocols and continue down the same path.
Mike Brickner is the Director of Communications & Public Policy for the ACLU of Ohio