State could have path to obtaining long-sought execution drug

COLUMBUS » Ohio may have a path to obtaining a long-sought lethal injection drug if the state can locate the proper ingredients, the prison system’s top lawyer said during a deposition in a legal challenge to Ohio’s proposed execution drugs.

The state has been unable to carry out executions on more than two dozen condemned killers because of court challenges to its proposed three-drug method, which includes midazolam, a sedative used in problematic executions in other states.

Gov. John Kasich delayed executions once again in May, including that of Ronald Phillips, now scheduled to die in July for raping and killing his girlfriend’s 3-year-old daughter in Akron in 1993.

Stephen Gray’s deposition, taken last year and unsealed May 24, suggests Ohio may have a possible source of a barbiturate called pentobarbital through a compounding pharmacist. Gray said in the deposition that the pharmacist might be able to supply pentobarbital to the state.

Pentobarbital was Ohio’s preferred lethal drug until U.S. supplies dried up, and obtaining supplies of pentobarbital could go a long way to breaking the legal deadlock over state executions. A single, lethal dose of pentobarbital was without problems in 10 Ohio executions from 2011 to 2013.

Compounding pharmacists typically mix small, specialty batches of drugs that aren’t subject to the same type of federal regulations as pharmaceuticals mass-produced by drug makers.

If Ohio could legally import overseas ingredients for pentobarbital, “then maybe there may be a relationship with that compounding pharmacist to supply that to my Department,” Gray said in the Dec. 16 deposition.

In the same deposition, Gray confirmed that a compounding pharmacist on a prison system list wouldn’t be able to mix pentobarbital without being supplied the active ingredients. The list Gray refers to, “Exhibit 22,” is sealed.

The prison system declined comment. Timothy Sweeney, the attorney who questioned Gray in the deposition, also declined comment.

In a May 25 filing with a federal appeals court in Cincinnati, Sweeney and other attorneys argue that, based on the evidence, death row inmates “are likely to succeed in showing that pentobarbital is available to Ohio.”

The appeals court on June 14 will hear death row inmates’ challenge of the state’s proposed three-drug method that includes midazolam, which was used in problematic executions in recent years in Arizona, Arkansas and Ohio. Opponents say midazolam creates a substantial risk of harm by not rendering inmates deeply unconscious.

A three-judge panel previously declared the method unconstitutional, but in a rare move, the full court agreed to rehear the case at the state’s request.