Ohio Lawmaker Proposes Using Fentanyl Seized in Drug Raids to Execute Death Row Inmates

A member of the Ohio General Assembly plans to introduce a bill that will allow the state to use fentanyl seized in drug busts to execute criminals who are sentenced to the death penalty, hoping to alleviate the shortage of execution drugs. Scott Wiggam, a Republican from Wooster, sent an email to his colleagues on Monday asking them to cosponsor his bill, which could help to clear the backlog on Ohio’s death row.

“In the coming weeks, I plan to introduce legislation that will allow the State of Ohio — specifically the Ohio Department of Rehabilitation and Corrections — to utilize seized fentanyl as a drug to be administered in death penalty cases,” Wiggam wrote in the email. “Up until this point, the appropriate drugs for death penalty administration have not been readily available and I believe that seized fentanyl (considered forfeited contraband through the court system) is the best solution to this problem.”

Gov. Mike DeWine has delayed several executions this year, citing the inability to obtain the drugs necessary to perform lethal-injection executions after a judge ruled that the drug cocktail the state was using for executions would “almost certainly subject [a person] to severe pain and needless suffering.” At present, there are 22 inmates scheduled for execution in Ohio through 2022.

Compounding the problem, drugmakers are threatening to stop selling all drugs to the state if they continue to use some of them to execute convicted criminals. An Ohio law that shielded drug companies from knowing how the drugs were used, signed into law by Gov. Kasich in 2014, was recently allowed to sunset. DeWine has been discussing alternative means of executing criminals as blacklisting by drug manufacturers becomes a real possibility. Ohio law currently specifies that only legal injections may be used in executions.

As a result of the inability of the state to procure the needed drugs, Wiggam is proposing to instead use fentanyl — a synthetic opioid 50 times more powerful than morphine — which has been responsible for thousands of overdose deaths in Ohio. The bill will instruct the Department of Rehabilitation and Corrections to “work in conjunction with the Drug Enforcement Administration to obtain pre-existing seized fentanyl and the DRC will have set rules for appropriate handling, testing, and administration of the drug,” Wiggam’s email said.

Wiggam told PJM that he fears the death penalty could go away in Ohio if the problem is not addressed. “There seems to be every excuse under the sun to say that the death penalty cannot be done,” he said. “I’m concerned, basically, that there’s an effort to kill the death penalty by a thousand cuts without having the state of Ohio have a conversation about the morality or efficacy of the death penalty.” While he declined to name names, Wiggam aid he’s “had conversations with individuals that would be connected with the dialogue [about the death penalty] and there seems to be a thought that nothing seems to work, so we just can’t do it.”

The Ohio lawmaker said he’s open to revisiting the shielding law and to discussing the use of other drugs seized by law enforcement, but reasoned that there’s enough fentanyl being held by law enforcement in the state “to kill more than half of the state’s population.” Once the case is over, the drugs are scheduled for destruction, but Wiggam thinks that some of them could be used to perform executions.

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According to the DEA, fentanyl produces “relaxation, euphoria, pain relief, sedation, confusion, drowsiness, dizziness, nausea, vomiting, urinary retention, pupillary constriction, and respiratory depression.” During an overdose, individuals experience “stupor, changes in pupillary size, cold and clammy skin, cyanosis, coma, and respiratory failure leading to death.”

Last August, Nebraska became the first state to carry out the death penalty using fentanyl. NPR described the execution of Carey Dean Moore:

Tuesday morning’s execution of Carey Dean Moore is also the first time the powerful synthetic opioid fentanyl had been used in a lethal injection in the U.S.

Moore, who has been in prison since 1980 after he was convicted in the murders of two taxi drivers, did not put up a legal challenge to the execution protocol. He had seven other execution dates before this one.

The first drug was administered at 10:24 a.m. local time, and Moore was pronounced dead at 10:47 a.m., according to the Nebraska Department of Correctional Services.

“Witnesses said that there appeared to be no complications in the execution process,” The Associated Press reported. “At one point while on the gurney, Moore turned his head and mouthed several words to his family, including ‘I love you.'”

Wiggam’s bill goes a step further by using fentanyl seized by law enforcement rather than relying on a drug manufacturer, as Nebraska’s law does.

Not everyone thinks using fentanyl seized in drug busts for executions is a good idea.

“There is just something fundamentally wrong in using illegal drugs to carry out a legal sentence,” death penalty opponent Robert Dunham, executive director of the Death Penalty Information Center told The Dispatch. “These are illegal drugs, controlled substances, materials used in other crimes.” He said the proposed law could run afoul of federal drug statutes, explaining that “police just can’t turn it over to whomever they want.”

Gary Daniels, chief lobbyist for the ACLU in Ohio, tweeted, “Ohio legislators are now cooking up a plan to use fentanyl seized in drug cases to resume capital punishment. Apparently, 9 exonerations (in just Ohio), several botched executions + race & poverty issues will not deter the bloodthirst.” He added, “It’s time to end the death penalty. It’s frustrating that Ohio continues to twist itself into knots finding ways to execute people when the state has done such a bad job of it in recent history.”

More than half of Americans (54 percent) support the death penalty with 39 percent opposed, according to a 2016 Pew poll. A 2014 Quinnipiac poll found that Ohioans support the death penalty, 69 percent to 25 percent. Ohio, one of 29 states to allow the death penalty, currently has 141 prisoners on death row in its prison system, the seventh most in the nation.

According to the DEA’s 2018 National Drug Threat Assessment, “Illicit fentanyl and other synthetic opioids — primarily sourced from China and Mexico—are now the most lethal category of opioids used in the United States.” The report predicted that suppliers will “continue to experiment with new fentanyl-related substances and adjust supplies in attempts to circumvent new regulations imposed by the United States, China, and Mexico.” There has been a huge uptick in fentanyl deaths since 2015 — with Ohio ranking near the top of the list, behind only New Hampshire, W. Virginia, and Massachusetts.

Using fentanyl to perform executions seems like a natural solution to the problem of lethal-injection drug shortages and blacklisting. The seized drugs are already under the state’s control, so the state would not be at the mercy of drug manufacturers that are increasingly squeamish about the use of their drugs in executions. Death penalty opponents will argue, as they do with any method of execution, that death by fentanyl injection would result in “cruel and unusual punishment,” but their objections are more often than the death penalty, full-stop, is cruel and unusual. They also seem to believe that the death penalty, if administered, should involve no pain or suffering, when, in fact, that’s not what Eight Amendment demands. While death by lethal injection may result in some discomfort or even pain, there’s nothing cruel or unusual about a method that, after sedating a criminal, causes him to lapse into a coma and eventually cease breathing.

“I’m hoping to spur on more conversations and not let the death penalty and capital punishment go away because of bureaucratic complications,” Wiggam said. He warned that there is a “major push to end the practice on the left side of the aisle and probably enough Republicans who agree.”