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Ohio prosecutors push to shield identity of pharmacists who create lethal injection drug

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COLUMBUS, Ohio — Ohio prosecutors want the identities of pharmacists who create specialty doses of execution drugs shielded and say doctors who consult with Ohio about its execution process should be given immunity from regulatory discipline.

The proposals, which appear in draft legislation, address concerns about the state's current two-drug injection method, said John Murphy, executive director of the Ohio Prosecuting Attorneys Association.

Executions are on hold until February because of challenges to the method, which has resulted in prolonged executions in Ohio and Arizona. Without a viable way of executing prisoners, "we don't have a death penalty in the state," Murphy said Thursday.

If enacted, the laws would bring Ohio into line with states like Missouri and Texas, which each use a single, compounded dose of pentobarbital to put inmates to death. The states won't say where the drug comes from.

States have moved to compounded drugs — small, specialty batches that don't face the same kind of regulations as mass-produced drugs— as supplies of federally regulated pentobarbital and other drugs have dried up. Drug manufacturers put those medications off limits under pressure from death penalty opponents.

Drug makers need anonymity because assistance in lethal injection in other states "has subjected those persons and their businesses to actual threats of physical harm, harassment and risks to personal safety," according to the draft legislation.

The legislative proposals were first reported by The Columbus Dispatch.

Murphy said Ohio may need to consider an alternative execution method, such as using nitrogen gas in a sealed chamber. The head of Louisiana's prisons agency suggested the idea in April, arguing the gas causes no pain.

Shielding information about drugs would set a dangerous precedent, according to the Ohio chapter of the American Civil Liberties Union.

"The public, the courts and condemned inmates have to feel confident knowing what is used in executions so that they will happen in a humane way," said ACLU spokesman Mike Brickner.

A federal judge put executions on hold until February because of questions raised by the January execution of Ohio inmate Dennis McGuire, who gasped and snorted for 26 minutes before he was declared dead.

McGuire's execution was the first one in the U.S. using a two-drug method involving a sedative and painkiller, both commonly used in surgery though at much lower doses. In July, an Arizona inmate took almost two hours to die using the same combination of midazolam and hydromorphone.

Ohio's execution method calls for compounded pentobarbital as its first choice, but the state has been unable to obtain it.

Granting doctors immunity from discipline by licensing boards appears to address Ohio's loss of its longtime expert witness for execution methods, University of Massachusetts anesthesiologist and pharmacologist Mark Dershwitz.

In August, Dershwitz announced he would no longer provide such testimony out of fear he could be disciplined by the national anesthesiologists' board.

Dershwitz has also testified for several other states' corrections agency and for the federal government. Ohio has not said what it will do for expert testimony in the future.


Andrew Welsh-Huggins can be reached on Twitter at https://twitter.com/awhcolumbus.

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