January 12, 2013
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.