Fordham Law


Ohio executes inmate using new, single-drug method for death penalty

Deborah Denno in The Washington Post, March 11, 2011

Media Source

By Rob Stein
Washington Post Staff Writer
Friday, March 11, 2011; 1:21 AM

Ohio executed an inmate Thursday with a single drug previously used to euthanize animals, the first execution of its kind in the United States and a potentially pivotal development in the nation's emotional battle over capital punishment.

Johnnie Baston, 37, was pronounced dead at 10:30 a.m. at the Southern Ohio Correctional Facility in Lucasville after receiving an infusion of the powerful barbituate pentobarbital, officials said. Baston was sentenced to death for the 1994 killing of Chong Mah, 53, a Toledo store owner.

Capital punishment in the United States was thrown into disarray in January when the only U.S. company that makes sodium thiopental, which Ohio and other states had long used with two other drugs for lethal injection, announced that it would no longer produce the drug.

The decision forced states to delay executions and scramble for alternatives. Opponents and supporters of the death penalty predicted Thursday that other states would follow Ohio and adopt the new one-drug approach, alleviating delays in executions in the short-term but potentially leading to legal challenges that could further mire the system in the long term.

"This might very well be the wave of the future in capital punishment in the United States," said Richard Dieter of the Death Penalty Information Center.

Death penalty supporters welcomed the development. It will allow executions in Ohio and other states that adopt the new protocol to proceed with less of a threat of drug shortages and other complications. It will also neutralize charges that inmates may be paralyzed but conscious and in pain while being executed with the traditional three-drug method.

"This is a positive development. Justice is overdue in these cases," said Kent Scheidegger, legal director for the Criminal Justice Legal Foundation in Sacramento. "There are some murderers for whom anything less than death is an inadequate punishment."

But opponents of the death penalty condemned the new protocol, saying too little is known about how pentobarbital works for this purpose in people.

"Ohio is gambling blindly in its rush to execute," said Deborah W. Denno, a professor of law at Fordham University Law School in New York. "There is no reason why Ohio cannot take the time to devise a constitutionally acceptable execution procedure in the way so many experts have recommended."

The Danish company that distributes pentobarbital in the United States said it had no control over how its products are used but criticized Ohio's decision.

"It's against everything we stand for," said Mads Kronborg, a spokesman for H. Lundbeck of Copenhagen. Kronborg said the company had protested to state officials considering using the drug for executions. "We invent and develop medicine with the aim of alleviating people's burden. This is the direct opposite of that."

Thirty-four states, including Virginia and Maryland, allow capital punishment. All use lethal injection, and, until recently, most had used a three-drug cocktail: sodium thiopental to render the condemned unconscious, pancuronium bromide to paralyze the prisoner and potassium chloride to stop the heart.

Shortages of sodium thiopental began after Hospira of Lake Forest, Ill., stopped making it in August 2009 because of problems obtaining one of the main ingredients, prompting doctors to turn to alternatives for medical purposes and some states to delay executions.

The company planned to shift production from North Carolina to a facility in Liscate, Italy. But the Italian Parliament demanded that the company ensure that the drug not be used for executions, which the company could not guarantee.

Last year Oklahoma replaced sodium thiopental with pentobarbital in its three-drug combination. Washington state has executed one inmate using sodium thiopental alone. Ohio began using sodium thiopental by itself after a highly publicized 2009 case in which an execution was scuttled after two hours of trying unsuccessfully to kill an inmate. The state switched to pentobarbital alone after Hospira's announcement.

"The protocol change resulted from a national shortage of sodium thiopental and the manufacturer's announced discontinuation of production," said JoEllen Smith, a spokeswoman for the Ohio Department of Rehabilitation and Correction. Thursday's execution went smoothly, she said.

Others predicted death penalty opponents would use the development as an opportunity to launch new legal challenges, perhaps questioning the legality of states switching protocols without public input or without clear scientific evidence about using pentobarbital for this purpose.

"Death penalty opponents . . . can't win on the substance of the death penalty, so they are being very nitpicky about procedures and are attacking it any way they can," said John C. McAdams, a professor of political science at Marquette University.

Texas, which conducts the most executions, has not yet decided what it will do once its supply of sodium thiopental is exhausted. Virginia, which has carried out 108 executions - the second-highest number in the nation - since the reinstatement of the death penalty in 1976, is"investigating all options," Virginia Department of Corrections spokesman Larry Traylor said. The state uses both the three-drug combination that includes sodium thiopental and the electric chair.

In Maryland, where lawmakers have debated in recent years about whether to abolish capital punishment, the use of the death penalty has been on hold since December 2006, when the state's highest court ruled that the method for carrying out executions had been improperly adopted.

After the sodium thiopental shortages began, several states, including California and Arizona, obtained supplies from a manufacturer in Britain. But officials in Britain, which also does not have the death penalty, have demanded that any future shipments to the United States not be used for executions. Opponents have also challenged the legality of importing sodium thiopental for executions.