Debate Forum 11/05

Debate Center: Ohio’s new untested execution lethal drug mixture

 By Alex Culpepper

 Illustration: Dayton artist Elliot Ward


The United States has a history of executing convicted criminals who have committed the most antisocial of crimes. For a long time, hanging was the preferred method, used either formally or informally. By the 20th century, the electric chair was the chosen method in states that performed executions. Now, states use lethal doses of drugs for carrying out the sentence. Lately, however, manufacturers of the drugs used in executions are limiting or refusing to supply those drugs. As a result, states are seeking other drugs, but use of these new drugs has sparked some controversy.

In October, the state of Florida performed the execution of William Happ, and in his execution the state used a new, untested drug called midazolam. Later this month, Ohio has an execution scheduled for Ronald Phillips, and the state plans on using the same lethal injection drug for his execution. Normally, Ohio would use sodium thiopental or pentobarbital, but those drugs are in short supply because of manufacturer unease with executions. So, with a lack of traditional and tested injections for executions, Ohio and other states send out to what is called a compounding pharmacy to have a specialty batch of drugs mixed up, and concoctions from those pharmacies are mixed without Federal Drug Administration (FDA) oversight, and the pharmacies themselves have public relations problems since authorities recently traced an outbreak of meningitis to a pharmacy lab in Massachusetts.

Opponents believe the use of lethal injections untested and unregulated by the FDA is bad practice. They claim untested drugs may not properly sedate the prisoner who then may be conscious and aware of the feelings of paralysis and cardiac arrest as they take effect. This would be a violation of laws that apply to performing executions, especially a violation of the Eighth Amendment to the U.S. Constitution regarding cruel and unusual punishment. In essence, opponents say the state is attempting to use untested drugs they “get a hold of from the backroom of local pharmacies, rather than what’s recommended by medical experts.”

For the supporters of new lethal injections, the issue is pretty simple. State authorities believe the new drugs work just fine and are a viable alternative – and maybe the only alternative – to the drugs used previously. Other supporters also feel fine with the new drugs and have no problem if the person being executed experiences a little pain and suffering because they would point to the victims and their families and say they have experienced their share of pain and suffering as well.

Even though states are turning to untested drugs, the issues involved are not part of an idle debate. So far, at least two lawsuits are in federal courts – one in Florida and one in Georgia. Judges there will be ruling about constitutional violations, safety and effectiveness and the role compound pharmacies play. Supporters of using the new drugs are confident in the pursuit of alternatives in the midst of a changing drug market. Opponents believe using untested drugs is unethical and possibly illegal and at least want more oversight and safety approval before new drugs are more widely used.

Reach DCP forum moderator Alex Culpepper at


Debate Forum Question of the Week:

Florida recently executed an inmate, using a new, untested lethal injection because what they normally would use was not available, and Ohio is set to do the same Nov. 14. Should Ohio use untested drugs for the purpose of carrying out an execution?

 Debate Right: Will we ever get this right?

By Marianne Stanley

 When all is said and done, it really comes down to just one thing. Is it ever OK to knowingly, willingly and unnecessarily kill another human being?

Granted, Ronald Phillips committed a horrendous, vicious and unspeakably cruel crime when he raped and murdered the 3-year-old daughter of his girlfriend. No sane person would minimize the gravity or depravity of his offense. But, that is beside the point. The point is that our actions, not our words, define us, and murdering someone in cold blood is committing the very act we’re punishing the killer for. That makes us what … noble? Justified? Moral? Nope. None of the above. It makes us dirty, ugly, low and disconnected from spirit.

Ohio is about to make Phillips a human guinea pig, using a compounding pharmacy to concoct a potion that they hope will kill him in the same manner as the traditional single dose of pentobarbital. The state could alternately choose to instead use a two-dose method where he gets both midazoliam – a sedative – and hydromorphone – a painkiller – also through a compounding pharmacy. Why must these drugs be made in a compounding pharmacy? Because the manufacturers are too humane to assent to their products being used in executions. The drug of choice – pentobarbital, made by Denmark-based Lundbeck, Inc. – was taken off the market in 2011 because they objected to its use for this purpose. Now, our states’ supplies have either run out or have expired.

The quandary is, “What to do now?” We could use this as a time to take a step back and see if there just might be some reason so many civilized countries refuse to murder someone as punishment for their crimes. Might it be that they are on to something?

The real question behind the question here is not, “Does this guy deserve to die?” or even to question whether this was a crime so heinous that death seems justified. The answer to both of those would most likely be in the affirmative. But, in our country, the question needs to be, “What is the purpose of the criminal justice system?”

In law school, we were told that the main task of the judicial branch of our government is to balance the good of society against the rights of the individual. Both are vital to a functional democracy. While individuals deserve acknowledgment of their inherent dignity as human beings, which includes such things as the right to speak, act, gather, travel and live freely, this right ends where another’s freedoms are threatened or where others would be harmed.

The harm in this case has already been done. The government then is left with its continuing duty to protect society from such a person without violating the terms of the Eighth Amendment’s prohibition of cruel and unusual punishment. That brings us to the pivotal question, “Is killing someone necessary to protect society?” The answer, of course, is, “No.” If we can send rockets into space and messages through cyberspace; if we can build tunnels beneath the ocean and float ships eight stories high and longer than four city blocks, then surely we can build a cell within a jail within our prison system that can safely contain a dangerous person for life.

Medical doctors have already expressed their concerns about the plan to kill this man using untested drugs, saying that they may not work as promised and could inflict prolonged, undue and severe pain. The Florida man who just received a compounded form of pentobarbital this past month took twice as long to die as is normal for death by lethal injection. It may cause painful paralysis and a fatal heart seizure over many minutes while the person is paralyzed by the drug and thus cannot even make a sound or gesture as the torture drags on.

Let’s face it … this is all about retribution, punishment, revenge – odd thing to see in a supposedly Christian nation. Strangely enough, “civilization” implies “civilized,” but the barbaric act of casually and unnecessarily ending the life of another is anything but civilized.

Who are we anyway? More importantly, who do we want to be? We must choose what laws and acts best define us and our values. Right now, we seem to be not just a wee bit off in that department, but way, way off. Over the past two decades, we have seen our society sliding precipitously close to the edge of barbarism and the tempo of that slide is increasing. If we go along with letting this murderer become another victim of our apathetic approach to the pain and suffering of others, then we, too, are to blame for standing by as the America of yesterday becomes the hellhole of the world, knowingly creating pain and suffering for the masses without so much as a twinge of conscience or a backward glance.

To want revenge is one thing; to seek and implement it is another. Doing the right thing may not be easy, but without sensitivity to another’s preventable pain, we are worse than amoral – we are complicit in the collapse of a nation that once made great strides in noble goals.

It’s time … time to release those convicted of non-violent drug offenses to their families, to slash the bloated military budget and instead ensure that no American man, woman or child goes hungry. We need to abandon tough talk and allow ourselves to care again before life mimics art and the U.S. becomes a nation of the living dead.

Marianne Stanley is an attorney, college professor and former journalist who believes many of our nation’s ills could be cured if our children were taught critical thinking skills beginning at the elementary level and continuing through middle and high school. She can be reached at

 Debate Right: Lethal injection by any means – cruel and unusual?

By Dave Westbrock

 From the outset, the argument in this article is not whether capital punishment is moral or ethical. There are good arguments’ on both sides of the issue, which has been debated ad nauseam for at least the past 40 years.

Many arguments against capital punishment use the dictum of “cruel and unusual.” States in the past have used hanging, firing squads and gas chambers. Currently, lethal injection is the most widely used method in the U.S. Idaho still has the firing squad as an option. Over centuries, U.S. law has mainly reflected British law in regard to the death penalty. The 18th century period of Enlightenment brought about the idea that the punishment should fit the crime. Now, most death penalty verdicts are based on convictions for murder and rarely for treason – federal jurisdiction. It is generally believed by adherents to the death penalty that it is indeed a deterrent to murder. However, conflicting statistics arise as to the accuracy of that idea.

One thing is certain: opponents of capital punishment will say most every method of execution is both cruel and unusual. The gas chamber – first utilized in 1921 in Utah as an alternative to the electric chair – utilized cyanide gas. It was used extensively in California but outlawed by the 9th United States Court of Appeals in 1999 when a criminal was seen to experience a long and agonizing death during execution. Curiously, Oklahoma law provides for electrocution if lethal injection is ever outlawed and firing squad if both are found illegal. Nevertheless, lethal injection has been the preferred method of execution in 35 states plus the federal government and the U.S. military.

Pentobarbital is a rapidly acting barbiturate with highly sedating properties, which at any dose does not produce rapidly falling brain levels as does the short-acting drug, thiopental. Death by sedation is literally that. Sedation for anesthesia has been used since William Morton first demonstrated it at the Massachusetts General Hospital in 1846. Anyone undergoing anesthesia by ether found it somewhat discomfiting, having a mask placed over the nose and mouth, using the drop method to administer the drug.

Modern science and the use of pharmaceuticals have attained a high degree of reliability, whether delivered by a regulated FDA-recognized pharmacy or a compounding pharmacy. Measurements of the amount of drug in a particular formulation may vary to some extent, and a state may make a provision that lots may be tested for the concentration of a drug that does not require the FDA’s stamp of approval. Given the nature of pentobarbital, sedation at various concentrations may be both sedating and lethal. Anesthesiologists are physicians who undergo residency training for the purpose of “putting someone to sleep” for a surgical procedure, the safety factor being whether the patient is first adequately anesthetized, so as not to experience the pain of the surgical procedure and “wake up in the middle,” but also to guard against the danger the anesthetic may cause, including irreversible damage by paralysis of the respiratory muscles. Since anesthesia is necessary to relax muscle contraction, a tube is most often inserted in the trachea and the patient is assisted in breathing artificially. Most major surgeries utilize so-called general anesthesia for this purpose. Since the object of surgical anesthesia is to solve the problem without killing the patient, such avoidance does not apply to legal lethal injection. The addition of midazolam, also known as Versed, is used to allow sedation in a matter of seconds, the combination utilized to cause a rapid sedation and death when used for execution. It is one of the safest and most widely used sedatives in both hospital and outpatient procedures. Anyone anesthetized with this drug can testify as to the calming sedation it produces.

The argument then leads to the question, “Does all lethal injection constitute ‘cruel and unusual punishment’ no matter the drug used in performance of the execution?” Is hanging more humane, or is death by electrocution more humane. “Old Sparky” was the name given to electric chairs in Florida, Texas, West Virginia and South Carolina before the U.S. Supreme Court stopped this method in 1964, after which lethal injection replaced electrocution in most states.

According to common law, cruel and unusual applies to “any fine, penalty, confinement or treatment that is so disproportionate to the offense as to shock the moral sense of the community.” The Eighth Amendment to the Constitution prohibits cruel and unusual punishment for federal crimes and the Fourteenth Amendment prohibits cruel and unusual punishment for state crimes. Having been stated, then, does capital punishment itself constitute cruel and unusual punishment when the crime is murder or treason? In the past, the rationale for the state ending one’s life ranged from insulting the king to thievery, from a nobleman accused of practicing magic to Socrates being forced to drink hemlock for his teachings.

In the 21st century, pharmaco-technology has made lethal injection as a form of capital punishment both safe and effective. The fact that compounded drugs are unsafe and cruel is, on its face, ridiculous, since it is unreasonable that one could not test such drugs in the doses used to execute an individual without killing them. The only rationale, then, is to ban all capital punishment as inhumane and “cruel and unusual.”

Dr. Westbrock has been in private medical practice for 35 years. He was the Republican candidate for the U.S House of Representatives in 1994 and 1996. He has written and lectured extensively on the subject of health care reform and health care policy. He can be reached at



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