Last month we reported that Ohio had been granted a licence by the U.S. Drug Enforcement Administration (DEA) allowing it to import sodium thiopental (one of the two drugs permitted for executions in Ohio). We noted, however, that a different body, the U.S. Food and Drug Administration (FDA), which regulates drug imports, had previously stated that the import of sodium thiopental for executions is unlawful.
This month a Freedom of Information Act request by Buzzfeed News revealed that in June the FDA sent a letter to Gary Mohr, Director of Ohio Department of Rehabilitation and Correction (ODRC), warning him specifically against importing sodium thiopental. You can view the letter at Cleveland.com. The letter refers to “information received” that the ODRC “intends to obtain bulk and finished dosage forms of sodium thiopental.” It draws Mr Mohr’s attention to two relevant 2012 rulings by a federal appellate court (made in support of death row prisoners in Arizona, California and Tennessee). The letter is clear:
“Please note that there is no FDA approved application for sodium thiopental, and it is illegal to import an unapproved new drug into the United States.”
However, according to Doug Berman, law professor at Ohio State University, past court rulings make it uncertain whether the federal government can prevent state agencies enforcing the death penalty: the FDA might not be able to punish Ohio if it imports sodium thiopental in defiance of federal law.
A possible supplier for Ohio is a dealer based in India, Chris Harris. Emails from Harris and the DEA show that as well as selling sodium thiopental to Nebraska, Harris has supplied the drug to at least one other state. An ODRC spokesperson declined to say whether Ohio had purchased from Harris directly or indirectly.
Ohio has already passed an execution secrecy law that has raised serious questions of legality; it now seems to be considering taking secrecy a stage further. To the nineteen Ohio death row inmates who have execution dates (including Jeffrey Wogenstahl) this must be particularly troubling. Why is their government so determined to pursue their execution when other states have outlawed this punishment as obsolete and barbaric?
We can only hope that Ohio, too, will soon be forced to consign the death penalty to its rightful place in the past.