The record is now well established that if we are going to conduct executions by lethal injection, pentobarbital is the drug of choice. That is the drug veterinarians use for animal euthanasia every day.
The manufacturer of pentobarbital has cut off the usual supply chain for obtaining it. As discussed in this article by James Gibson and Corinna Lain forthcoming in Georgetown Law Journal, European governments are instigators of the shortage, interfering in a domestic policy choice of the United States that is quite simply none of their damn business.
The workaround is compounding pharmacies. However, those pharmacies have been subject to harassment that makes them unwilling to supply the needed drug. As noted in this post in September, the anti-death-penalty movement is responsible for the problematic executions carried out with other drugs when they made pentobarbital unavailable.
The Ohio Legislature is now moving forward, in HB 663, to extend confidentiality to suppliers of execution drugs. The bill also prohibits any disciplinary action against doctors who provide the state with consultation on how avoid pain during an execution, which has been a problem. The legislation declares contractual restraints on resale to be "void and unenforceable as against public policy."
Jeremy Pelzer had this article on the legislation last week on cleveland.com (site of the Plain Dealer). He also has a follow-up article today on claims the legislation is unconstitutional. Most of these claims are meritless, in my opinion. Our friend Doug Berman from SL&P "said he believes HB 663 is 'probably' constitutional, but he questioned whether it would be better for Ohio to instead look at other methods of execution besides lethal injection."
A legislative analysis of the bill notes, "To the extent that the bill's provision voiding contracts applies to contracts entered into before the bill's effective date, it might be found to violate the clauses of the U.S. and Ohio Constitutions that prohibit the General Assembly from passing laws that impair contractual obligations." True, but application to contracts made or renewed henceforth is worthwhile. What we really need is for Congress to enact a law like this. The Contract Clause only applies to states.
The manufacturer of pentobarbital has cut off the usual supply chain for obtaining it. As discussed in this article by James Gibson and Corinna Lain forthcoming in Georgetown Law Journal, European governments are instigators of the shortage, interfering in a domestic policy choice of the United States that is quite simply none of their damn business.
The workaround is compounding pharmacies. However, those pharmacies have been subject to harassment that makes them unwilling to supply the needed drug. As noted in this post in September, the anti-death-penalty movement is responsible for the problematic executions carried out with other drugs when they made pentobarbital unavailable.
The Ohio Legislature is now moving forward, in HB 663, to extend confidentiality to suppliers of execution drugs. The bill also prohibits any disciplinary action against doctors who provide the state with consultation on how avoid pain during an execution, which has been a problem. The legislation declares contractual restraints on resale to be "void and unenforceable as against public policy."
Jeremy Pelzer had this article on the legislation last week on cleveland.com (site of the Plain Dealer). He also has a follow-up article today on claims the legislation is unconstitutional. Most of these claims are meritless, in my opinion. Our friend Doug Berman from SL&P "said he believes HB 663 is 'probably' constitutional, but he questioned whether it would be better for Ohio to instead look at other methods of execution besides lethal injection."
A legislative analysis of the bill notes, "To the extent that the bill's provision voiding contracts applies to contracts entered into before the bill's effective date, it might be found to violate the clauses of the U.S. and Ohio Constitutions that prohibit the General Assembly from passing laws that impair contractual obligations." True, but application to contracts made or renewed henceforth is worthwhile. What we really need is for Congress to enact a law like this. The Contract Clause only applies to states.
Am I right to read this last paragraph, Kent, as evidence that you have come around to a point I have been making for now nearly a decade: Congress can and should be much more involved in trying to fix nationwide problems with lethal injection?
The point on which I think Congress needs to be involved is squarely a federal question: interstate and international commerce.
I am a little confused - is part of the problem that foreign manufacturers of the drug put clauses in their contracts that the drug can't be resold to states for execution purposes?