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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, according to a report by The Columbus Dispatch. 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.
“If pharmaceutical companies discontinue supplying medications to the state of Ohio for these populations that are currently being served, it would put tens of thousands of our citizens at risk,” DeWine told the Dispatch. “Drugs they need for their health will be put in peril.”
A federal judge in Dayton expressed concerns that the state's three-drug execution cocktail is unconstitutional due to the risk of extreme suffering it can cause. The first drug in the cocktail, midazolam, can cause sensations similar to drowning, triggering an inmate's lungs to fill with fluid.
DeWine earlier this year delayed three executions as the state searched for a new lethal injection method. The next inmate scheduled to die is Warren Keith Henness, whose execution DeWine delayed in January. Henness was scheduled to be put to death in six weeks, but was given a new date, May 14, 2020, as of Thursday.
Despite the federal judge's ruling, 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 the legal battle moot, at least for now. DeWine said he would leave a decision about other execution methods — including the electric chair or firing squads — up to the Ohio legislature.
This post has been updated.
