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Using New Drug Cocktail, Ohio Seeks To Resume Death Penalty

By Eyder Peralta

Published October 3, 2016 at 1:57 PM EDT

Larry Greene, public information director of the Southern Ohio Correctional Facility, demonstrates how a curtain is pulled between the death chamber and witness room at the prison in Lucasville, Ohio.

After an almost three-year, defacto moratorium, Ohio plans to resume executions in the new year, the state's Department of Rehabilitation and Correction says.

Ohio has not put anyone to death since executing convicted killer and rapist Dennis McGuire in 2014. The state used a never-before-used combination of two drugs to execute McGuire, and it took him more than 20 minutes to die.

Today, the state told U.S. District Court Chief Judge Edmund A. Sargus Jr. that it had updated its execution protocol. The state intends to use a three-drug cocktail that is very similar to the one used in Oklahoma.

That's important because last summer, the U.S. Supreme Court held that the use of the three drugs administered in Oklahoma does not violate the U.S. Constitution's ban on cruel and unusual punishment.

"After filing the updated policy with Judge Sargus, [Ohio Department of Rehabilitation and Correction] will proceed with the scheduled execution of Ronald Phillips in January 2017," DRC spokesperson JoEllen Smith said in a statement. "Phillips was convicted and sentenced to death in Summit County for the 1993 brutal rape and murder of a 3-year-old girl."

At a court hearing today, the state said the three drugs — midazolam, rocuronium bromide and potassium chloride — are FDA approved and do not come from a compounding pharmacy.

If you remember, much of the recent controversy surrounding the death penalty relates to the provenance of such execution drugs. Under pressure from activists, many big pharmaceutical companies stopped selling the drugs to states that would use them for executions. That led to shortages, so states turned to new drugs made by compounding pharmacies, which do not face the same kind of approval process that big companies do.

In order to shield companies from the activists' pressure, some states allow their departments of corrections to keep the source of drugs secret. That's the case in Ohio, but the statement today means officials there have found a new source of drugs from a large manufacturer.

It's worth noting that the FDA approves the integrity of the drugs themselves, not how corrections departments choose to use them.

It is expected that lawyers representing inmates on death row will ask Judge Sargus to stop Ohio from going forward with the new protocol.

In a statement, federal public defender Allen Bohnert and Timothy Sweeney, a lawyer representing Phillips, said that with its new protocol, Ohio would continue its actions "behind a secrecy law that frees it from accountability for unlawful and unsafe practices."

The lawyers also expressed dismay with the state's intent to use the sedative midazolam.

"Medical experts have said that using midazolam will not reduce the substantial risk that Ohio will subject an inmate to an unconstitutional, agonizing execution," the lawyers said. "The state's decision to ignore the experts is deeply troubling, particularly since the last time Ohio ignored the experts, it botched Mr. McGuire's execution and suffocated him to death."