Lawmakers seek alternatives to lethal injection, as death penalty becomes mired in litigationDeborah Denno in The Cleveland Plain Dealer, February 20, 2014
Lawmakers seek alternatives to lethal injection, as death penalty becomes mired in litigation
By John Caniglia
CLEVELAND, Ohio -- In Wyoming and Missouri, lawmakers have brought up firing squads. In Tennessee and Virginia, they are discussing the electric chair.
The debate over the death penalty no longer focuses on whether it should be done, but how it should be carried out. And that issue is lining court dockets across the country with lawsuits.
Take condemned Cleveland killer Gregory Lott, for instance. His case is dragging on far away from a prison in Lucasville, where he may one day die strapped to a gurney. It is playing out in a federal courtroom in Columbus, where attorneys argue over the drugs used, hydromorphone and midazolam, and whether they will amount to cruel and unusual punishment when given to Lott.
Lott, who was convicted of killing 82-year-old John McGrath in East Cleveland in 1986, has received one of the latest in a series of delays that highlights how the death penalty has become mired in legal arguments over lethal injection.
Ohio is one of 32 states with the death penalty, and many are struggling over the procedure to kill inmates humanely. Of those states, about a third have put off executions because of challenges to lethal injection, according to the Death Penalty Information Center, court records and published reports.
And that has led some legislators to consider extreme measures to keep the punishment going.
"There are so many lawsuits that tie things up for way too long,'' said Tennessee state Rep. Dennis Powers, a Republican, who sponsored the legislation this month involving electrocution. "We would prefer lethal injection, but so many groups continue to file lawsuits to hold this up. We don't want to go backward with electrocution. We want to move on. I believe it is a disservice to the families of victims, who wait for years and must continue to wait for years.''
Could such a push happen in Ohio?
"Absolutely,'' said Robert Hagan, a Democrat state representative from Youngstown. "In Ohio, the amount of revenge for people in prison is incredible. Legislators across the land want to be tough on crime, and they want to keep the death penalty going.
"More and more people in Ohio will say, 'Let's get the firing squad. Let's get Old Sparky,' and to me that's just wrong. It's immoral.''
Those who have studied lethal injection say they are not certain that firing squads or electrocution are the ways to go. They say reverting back to the past is an indication of the angst over current problems.
"If we have a problem with our cars, we don't run out and grab the horse and buggy,'' said Richard Dieter, the director of the Death Penalty Information Center. "We fix the cars and move forward.
"I don't think there is a groundswell of support that we need to go back to more gruesome and painful methods of execution,'' Dieter said. "There is a sense of frustration caused by the lengthy delays in court.''
Deborah Denno, a law professor at Fordham University, said the calls for other forms of the death penalty indicates the need for states to move quickly to find answers if they want to continue with the punishment.
"States are realizing that there are problems with lethal injection, and they are trying to find some other route to execute inmates, just as they always have,'' Denno said. "We've never seen so many problems in so little time with lethal injection or any other form of the death penalty.''
Authorities in Arkansas, California, Colorado, Kentucky, Georgia, Louisiana, Mississippi, Montana, Nebraska, Nevada, North Carolina and Ohio are mulling the issue of lethal injection. Executions have been put off there, and new lawsuits are filed around the country on a regular basis regarding some form of lethal injection.
One of the latest fights comes in Missouri, where this month an inmate scheduled to die, Michael Taylor, sued a compounding pharmacy in U.S. District Court to prevent it from providing the pentobarbital used in the execution out of fear the drug could be contaminated. The suit says that could cause greater suffering to Taylor.
The Apothecary Shoppe of Tulsa was to produce the dosages of pentobarbital to Missouri for Taylor's death, according to the lawsuit. Attorneys Paul DeMuro and Matthew Hellman said in the lawsuit that the company had produced the drug to Missouri for prior executions. The lawsuit said "the pentobarbital compounded by this substantially unregulated pharmacy is of unreliable sterility, identity, purity, potency and efficacy.''
The pharmacy agreed that it would not provide the drugs to Missouri for Taylor's execution, according to court records and published reports. State prosecutors, however, said in court documents that the state would obtain the pentobarbital elsewhere.
The lawsuit, however, offers insight into how states have fought to obtain the drugs used in executions: "Since 2010, the (Missouri) Department of Corrections has followed three different execution protocols, changing from drug to drug based on market availability, rather than medical consideration such as efficacy and potency.''
Texas, for instance, has used pentobarbital from a compounding pharmacy since last fall, according to the Death Penalty Information Center. Other states also have used drugs from compounding pharmacies, according to the lawsuit. The U.S. Food and Drug Administration says compounding pharmacies "combines, mixes or alters ingredients of a drug to create a medication tailored to the needs of an individual patient.''
Opponents of the death penalty say there are several issues with compounding pharmacies working with states on executions, including the secrecy of how they operate.
The reason states seek out the pharmacies stems from drug makers who have refused to provide drugs to states that will use them for executions, according to the lawsuit. And as the struggle to find drugs continues, legislators like Powers have searched for other methods.
"I think it has a very good chance (of becoming a law),'' Powers said of his bill on the electric chair. "We have a person on death row who has been there for 29 years. That's just not right.''
In Wyoming, a push to make firing squads an alternative to lethal injection failed to make it out of the state Senate for consideration, according to statehouse records. In Missouri, state Rep. Rick Brattin also has sponsored legislation that would allow firing squads as a form of execution.
Utah, for instance, allows for firing squads if lethal injection methods are proven to be unconstitutional, according to the Death Penalty Information Center.
Some, like Jonathan Groner, say there are reasons why drug manufacturers refuse to provide the drugs.
"It's a medical charade,'' said Groner, a pediatric surgeon in Columbus and an opponent of lethal injection. "It looks like outpatient surgery. It is done by prison guards who have paramedic training. These people make mistakes because they aren't trained.''
In January, Ohio put Dennis McGuire to death in a 25-minute execution that drew national attention. His family sued, saying he suffered cruel and unusual punishment as he panted to breathe. State prison officials, in an initial review, said procedures were followed correctly, and they stood behind process.
Supporters of the death penalty said McGuire's execution overshadowed the pain and suffering he caused in the vicious rape and slaying of Joy Stewart in 1989 in Preble County.
Based on McGuire's execution, Lott's attorneys sued to stop his execution March 19. Ohio Gov. John Kasich pushed back the execution to Nov. 19, citing a broader investigation by prison officials. That examination is pending.
Lott was convicted of robbing and beating McGrath, who was found alive by police on the bedroom floor of his ransacked East Cleveland home in July 1986. Prosecutors said Lott tossed lamp oil on McGrath and burned him. McGrath died a week later of pneumonia brought on by the untreated burns.
Lott, 52, confessed to the crime in a letter to prosecutors before his 1987 trial in Cuyahoga County Common Pleas Court. He has run out of appeals. But McGrath's family members, citing their Catholic faith, have urged Kasich to spare Lott from the death penalty and force the convicted killer to spend the rest of his life in prison.
Lott also clings to a lawsuit before U.S. District Judge Gregory Frost in Columbus based on the drugs used in his execution.
And like so many lawsuits across the country, that could take months to resolve.