By Jeremy Pelzer
Gov. Mike DeWine says Ohio may need to stop executing people by injection because state officials have been unable to obtain the necessary drugs, according to a DeWine spokesman.
DeWine, a Greene County Republican, has asked legislative leaders to consider legislation that would change Ohio's 18-year-old law making lethal injection the state's sole execution method, according to gubernatorial spokesman Dan Tierney.
He also again delayed the execution date of convicted murderer Warren Henness, the next Ohio inmate set to be put to death, from Sept. 12 until May 14, 2020.
In January, a federal judge suggested that Ohio's current three-drug execution cocktail was unconstitutional, leading DeWine to postpone execution dates for Henness and three other men and order a review of the state's death-penalty method.
However, since then, state officials have found they've been unable to purchase new execution drugs, Tierney said. In addition, as many lethal-injection drugs are manufactured primarily for medical use, Tierney said the governor is concerned that if drug companies find that Ohio used its drugs to put people to death, the companies will refuse to sell any of its drugs (not just the ones used in executions) to the state. That could endanger the ability of thousands of Ohioans -- such as Medicaid recipients, state troopers, and prison inmates -- to get drugs through state programs, Tierney said.
DeWine has pointedly not said which, if any, alternative execution methods he would prefer to see used in Ohio. Tierney said that's because the governor is concerned that any such comments could affect ongoing death-penalty court cases.
At least one Ohio death-row inmate has asked to be put to death via firing squad. Tennessee brought back use of its electric chair twice last year, and Oklahoma has been working to execute inmates using nitrogen gas.
Even if state lawmakers agree that Ohio should find another way to kill death-row inmates, as the legislature is currently on summer break, it's unlikely any change in state law will come before this fall, at soonest.
Senate President Larry Obhof told reporters Wednesday that he looks forward to speaking with the governor and House Speaker Larry Householder about what to do about Ohio's execution method.
"I think all three of us approach the issue with an open mind," said Obhof, a Medina Republican. Obhof added that he thinks a majority of Ohioans support keeping the death penalty itself as an option, though he noted that the Senate is considering legislation that would prohibit executions of people with severe mental illness.
Householder spokeswoman Gail Crawley said in a statement Wednesday that "the speaker looks forward to being briefed by the governor on the situation."
DeWine's decision is the culmination of a years-long struggle by Ohio officials to find new lethal-injection drugs as European pharmaceutical companies have cut off further sales of previously used drugs on moral and legal grounds.
After the controversial execution of killer Dennis McGuire in January 2014, Ohio imposed a three-year moratorium on executions as it worked to find a new lethal-injection protocol -- and suppliers willing to sell the state the drugs.
Since the moratorium was lifted in 2017, Ohio has executed three people using the current three-drug cocktail -- all without complications or unexpected problems with the drugs. (The execution of a fourth condemned inmate, Alva Campbell, was postponed after several unsuccessful attempts to insert an IV. Campbell died in his cell a few months later).
However, last January, federal magistrate Judge Michael Merz ruled that the three drugs Ohio has used since last year for executions -- midazolam (as a sedative), a paralytic drug, and potassium chloride (to stop the heart) -- likely violate the U.S. Constitution's Eighth Amendment guarantee against "cruel and unusual punishment." Merz cited testimony from medical witnesses that high doses of midazolam and other drugs cause pulmonary edema, causing a painful drowning sensation comparable to the torture tactic of waterboarding.
Despite that, Merz allowed Henness' execution to proceed because, under a 2015 U.S. Supreme Court ruling, death row inmates challenging how they will be put to death must show that an alternative means of execution is "available," "feasible," and can be "readily implemented." Henness' proposed alternatives -- drinking secobarbital in a sweet liquid such as apple juice, or an oral injection of four drugs -- were rejected by Merz.
Even though Merz OK'd Henness' execution, the judge's concerns led DeWine to postpone his execution date and order the state's prisons agency to look at other drugs as possible alternatives for lethal injection -- a decision first reported by the Columbus Dispatch.
Tierney said the governor decided to postpone Henness' execution until next year for the same reason he initially rescheduled to September -- he wants to wait until an appeals court weighs in on Merz's ruling.
Henness was convicted of murdering his drug-abuse counselor, Richard Myers, in 1992. Prosecutors said Henness kidnapped Myers, shot him five times at an abandoned water-treatment plant, severed Myers' finger to get his wedding ring, then drove around in Myers' car for several days forging his checks and using his credit cards to get cash and buy crack cocaine.
Henness has maintained his innocence.
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