Despite 'untested' drug cocktail, judge says Ohio inmate will be executed

Despite concerns over a cocktail of lethal-injection drugs that has never before been used in the United States, a federal judge rejected a convicted child killer’s request Thursday to stay an execution slated for next week.

In September the Ohio Department of Corrections ran out of pentobarbital to carry out Ronald Phillips' Nov. 14 planned execution after Lundbeck, the Danish manufacturer of the drug, barred its sale to prisons and corrections departments for death-penalty use. The state said it will turn to a new method using an intravenous combination of the sedative midazolam and hydromorphone, a painkiller, to put Phillips to death.

Human- and legal-rights campaigners have aired concern over the drugs, claiming that their use is untested and risks an ordeal tantamount to torture.

Phillips, 40, was sentenced to die for raping and killing Sheila Marie Evans, the 3-year-old daughter of his girlfriend, in 1993, after a long period of abusing the girl.

Arguing that Phillips' Nov. 14 execution should not take place, the inmate's lawyers told a federal judge that Ohio's announcement of a new capital-punishment policy last month was delayed so long, it didn't leave enough time to fully investigate the method.

Questions have also been raised over the state's adoption of new rules that allow it to rely on compounding pharmacies — which are not subjected to the same federal scrutiny as pharmaceutical firms — for drugs. Moreover, officials have committed the state to carrying out any execution in a humane and dignified manner. 

Compounding pharmacies process ingredients to fit the needs of individual patients and are regulated by the states, not the stricter Food and Drug Administration, which regulates drug manufacturers.

Judge Gregory Frost said he understands why Phillips does not trust the state to follow its own execution policies because of problems in the past. But in a 51-page ruling, he said Phillips did not prove the state's new policy is unconstitutional.

"Some of the changes target the drug issue, while other changes tweak the protocol in various ways," Frost wrote. "The changes do not invariably result in the new protocol being unconstitutional."

An attorney for Ohio said the state is committed to carrying out the execution in a humane, dignified and constitutional manner and understands that commitment.

"The state will do what the state says it will do," Christopher Conomy, an assistant Ohio attorney general, said at the hearing.

But advocates for prisoner rights disagree with Frost's ruling, noting Ohio's responsibility to carry out executions humanely.

"To use untried and untested drugs in an execution is to introduce a serious — and constitutionally unacceptable — risk that the execution will amount to an exercise in torture," Maya Foa, director of legal-rights charity Reprieve's death-penalty team, told Al Jazeera. "If Ohio Department of Corrections is unable to carry out executions in a humane manner, it should not be executing at all."

Ohio Department of Corrections had considered using a compounding pharmacy after its supply of federally regulated pentobarbital ran out in September — a controversial method Missouri has adopted and has been criticized for.

In video testimony from the prison housing death row at the Nov. 1 hearing, Phillips said a doctor could not find veins in his arms during a pre-execution checkup in October.

"I guess the Lord hid my veins from them," Phillips said.

But later testimony from a prison doctor and nurse about that examination led Frost to conclude that they found usable veins, according to Thursday's ruling.

Hours after Phillips' lawyer failed to persuade the federal judge that the updated execution policy is unconstitutional, Gov. John Kasich rejected the inmate's request for clemency. If executed, Phillips will become the 392nd convicted murderer put to death in Ohio. 

Ehab Zahriyeh contributed to this report. With The Associated Press.