Ohio wants doctors to assist with executions

ANDREW WELSH-HUGGINS

AP Legal Affairs Writer

COLUMBUS — Doc­tors and other med­ical pro­fes­sion­als should be allowed to help put con­demned inmates to death to pro­mote “a humane exe­cu­tion” and state law should be changed to pro­tect them from pro­fes­sional sanc­tions if they offer such assis­tance, the lawyer for Ohio’s pris­ons agency said Thursday.

Leg­is­la­tion may also be needed to pro­tect phar­ma­cies that might mix a sup­ply of Ohio’s exe­cu­tion drug, and with­out such a law the state might not be able to obtain exe­cu­tion drugs in the future, said Gre­gory Trout, gen­eral coun­sel for the Ohio Depart­ment of Reha­bil­i­ta­tion and Correction.

Trout made the sur­prise announce­ments to a state Supreme Court com­mit­tee con­sid­er­ing changes to Ohio’s death penalty law. It’s unclear if either issue is some­thing the com­mit­tee would deal with. Trout said he felt both were impor­tant enough to bring to the committee’s attention.

He didn’t say when the agency might request such leg­is­la­tion and the pris­ons depart­ment declined to com­ment further.

The pres­ence of a physi­cian would help avoid prob­lems in admin­is­ter­ing the exe­cu­tion drug and “would be desir­able in pro­mot­ing a humane exe­cu­tion,” Trout told the com­mit­tee. “But presently it is extremely unlikely that Ohio would find any such physi­cian will­ing to do such a thing for fear of cen­sor­ship or revo­ca­tion of his license before the med­ical board.”

Trout said the assis­tance was needed “because of the desir­abil­ity of obtain­ing a high level of trained med­ical skill to accom­plish the exe­cu­tions that we are legally required to.” He didn’t explain the tim­ing of the request in light of Ohio’s mul­ti­ple exe­cu­tions in the past with­out doc­tors’ help.

The agency has fought sev­eral legal chal­lenges over the skill of the exe­cu­tion­ers, who are prison employ­ees with paramedic-type train­ing who vol­un­teer for the task.

Doc­tors are allowed to attend exe­cu­tions in Mis­souri but none have for sev­eral years. Two doc­tors are required at Geor­gia exe­cu­tions to deter­mine when an inmate has died.

The only time a doc­tor par­tic­i­pated in an Ohio exe­cu­tion in recent years was in 2009 when exe­cu­tion­ers asked a physi­cian to help as they tried unsuc­cess­fully to exe­cute inmate Romell Broom over about two hours. That exe­cu­tion was even­tu­ally called off and Broom remains on death row fight­ing a sec­ond attempt to put him to death.

Trout also said the state could run out of the means to put peo­ple to death with lethal drugs if phar­ma­cies that can mix sup­plies of drugs — called com­pound­ing phar­ma­cies — aren’t pro­tected from sanc­tions like los­ing their state accred­i­ta­tion. Ohio’s cur­rent sup­ply of pen­to­bar­bi­tal expires in Sep­tem­ber, but sev­eral exe­cu­tions are sched­uled after that.

With­out such pro­tec­tion for com­pound­ing phar­ma­cies, “Ohio may find itself unable to pro­cure the drugs that are nec­es­sary for our agency to carry out court order to com­ply with the law,” Trout said.

Enlist­ing such phar­ma­cies raises legal issues around patents held by com­pa­nies that make pen­to­bar­bi­tal, said state pub­lic defender Tim Young.

“It’s like say­ing it’s OK to break the law so we can exe­cute peo­ple,” Young said. “It’s an ends-justify-the-means prob­lem. They don’t. Find another drug man­u­fac­turer. Find some­thing else.”

In 2011, Denmark-based Lund­beck Inc., the only U.S.-licensed maker of pen­to­bar­bi­tal, sold the prod­uct to another firm. Lund­beck said a dis­tri­b­u­tion sys­tem meant to keep the drug out of the hands of pris­ons would remain in place as Lake For­est, Ill.-based Akorn Inc. acquired the drug.

The Ohio State Med­ical Asso­ci­a­tion said Thurs­day it wouldn’t sup­port any law shield­ing physi­cians from pro­fes­sional sanc­tions or oth­er­wise requir­ing physi­cians to par­tic­i­pate in exe­cu­tions. It said it fol­lows the Amer­i­can Med­ical Association’s pro­hi­bi­tion on doc­tors help­ing with cap­i­tal punishment.

On Thurs­day, the Supreme Court task force also dis­cussed pros­e­cu­tors’ pro­pos­als to require that lawyers rep­re­sent­ing death penalty clients would have to exten­sively doc­u­ment their time and track their rea­sons for call­ing or not call­ing par­tic­u­lar witnesses.

Any inmate claim­ing he had bad legal assis­tance dur­ing a trial would have to include such infor­ma­tion on appeal, accord­ing to the proposals.

Ohio law also should be changed to allow attorney-client priv­i­lege to be waived in cases where inmates allege poor legal aid “to allow full lit­i­ga­tion of inef­fec­tive­ness claims,” accord­ing to the proposal.

Defense attor­neys on the com­mit­tee oppose the pro­pos­als, includ­ing another one that would call for efforts to remove any hur­dles to “a speedy res­o­lu­tion” of death penalty cases in the state.

Posted by AP News on Feb 14 2013. You can follow any responses to this entry through the RSS Feed. Comments can be made below.