As the state struggles to find drugs for lethal executions, Republicans in the Ohio House of Representatives are discussing an end to the state's death penalty laws, Ohio House Speaker Larry Householder told reporters in Columbus today.
The state hasn't carried out any of its scheduled executions in 2019. Ohio Gov. Mike DeWine delayed several executions because the state has come up empty-handed in its quest for the required execution drugs. In October, for example, he issued reprieves for two death row inmates.
James Hanna of Toledo was scheduled for execution Dec. 11 for killing his prison cell mate in 1997. His new execution date is now July 2020. Kareem Jackson of Columbus was scheduled to be put to death on Jan. 16 next year for killing two in a 1997 robbery. His new execution date will be in September 2020.
Hanna and Jackson's death sentences are the fifth and sixth executions DeWine has delayed this year. Ohio still has two-dozen executions scheduled through 2024 — though there is no clear path forward for carrying them out as of now.
“We don’t know that there is an option right now,” Householder told media outlets. “We may have a law in place that allows for a death penalty that we can’t carry out. And the question is: Are the costs that are associated with that and retrials and all these things, at the end of the day, is it worth that?"
Those preliminary conversations have not coalesced into anything formal yet, Householder said.
The state's struggle boils down to difficulty in obtaining a single drug called midazolam.
Five years ago, Ohio prison employees injected convicted killer Dennis McGuire with a two-drug cocktail that was supposed to end his life quickly and painlessly.
It took 26 minutes for the mixture of hydromorphone and midazolam to kill McGuire — the longest execution since Ohio resumed capital punishment in 1999. Witnesses reported the condemned man loudly gasped for air.
The incident sparked court challenges claiming the drug cocktail constitutes cruel and unusual punishment in violation of the U.S. Constitution and eventually led the state to issue a moratorium on executions until it could find a new cocktail of lethal drugs that is more humane. But the choice it settled on — which still contains the controversial midazolam — is now under question.
Midazolam can cause sensations similar to drowning, triggering an inmate's lungs to fill with fluid, a federal judge in Dayton pointed out earlier this year while expressing concerns the execution method could be unconstitutional.
Ohio officials are unable to secure the drugs necessary to put inmates to death via lethal injection, DeWine announced in August, and must cease using them or risk being unable to buy the drugs for other purposes.
Companies that sell the drugs have balked at the state using them for executions without telling them they were doing so and have threatened to cut off all sales to Ohio if executions using the substances continue.That could impact entities such as the Department of Rehabilitation and Correction, the Department of Youth Services, the Department of Mental Health and Addiction Services and others.
Despite the federal judge's concerns, DeWine and state attorneys have contended that using midazolam isn't cruel and unusual punishment. They pointed to a ruling by Supreme Court Justice Neil Gorsuch arguing that since hanging wasn't considered "cruel and unusual" punishment when the Constitution was drafted, pain and suffering alone can't be used to block putting someone to death.
The dearth of drugs available for executions makes that legal battle moot, however, at least for now. DeWine has said he would leave a decision about other execution methods — including the electric chair or firing squads — up to the Ohio legislature.
It seems the House is at least considering another option — abandoning the death penalty.
“We have been talking about, you know, is there support today to get rid of the death penalty or not," Householder saids today. "We’ve been having those discussions.”