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December 11, 2017 By OTSE Staff

Fentanyl for executions? Two states are looking to try it

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Fentanyl drove another record year of overdose deaths in Ohio. Two states want to put the drug’s potency to another use: capital punishment.

But Nebraska and Nevada face opposition from death penalty opponents as they push for the nation’s first fentanyl-assisted executions, The Washington Post reports.

In Ohio, health officials say an average of 11 people died each day of drug overdoses last year. Fatalities were driven in large part by the emergence of stronger drugs like fentanyl, a synthetic drug 50 times more powerful than heroin and up to 100 times more powerful than morphine.

More than half the overdose deaths in 2016 involved fentanyl, compared with 40 percent in 2015 and 20 percent in 2014.

And it’s not just being cut into heroin, but also cocaine — and it’s easy to get, used legally to treat severe pain and in other medical situations.

Nebraska and Nevada prison officials wouldn’t comment on why they want to use fentanyl, the Post reported. But it’s that ease of purchase that may be desirable, as other execution drugs have gotten harder to obtain.

“We simply ordered (fentanyl) through our pharmaceutical distributor, just like every other medication we purchase, and it was delivered,” Brooke Keast, a spokeswoman for the Nevada Department of Corrections, told the Post. “Nothing out of the ordinary at all.”

States that still have the death penalty have tried other cocktails of drugs with varying degrees of lethality. Ohio was among the states that tested midazolam, a sedative. Convicted rapist and murderer Dennis McGuire was Ohio’s first inmate to be executed with midazolam in a never-before-tried combination, in 2014. He repeatedly gasped and snorted during a 26-minute procedure, the state’s longest ever using lethal drugs.

John M. DiMuro, who helped create Nevada’s fentanyl execution protocol while he was the state’s chief medical officer, said he based it on procedures common in open-heart surgery. His protocol calls for a three-drug combination that also includes Valium to sedate the inmate, and a paralytic just in case he continues breathing.

Critics say that try-it-and-see approach amounts to human experimentation.

“There’s no medical or scientific basis for any of it,” Joel Zivot, a professor of anesthesiology and surgery at Emory University, told the Post. “It’s just a series of attempts: obtain certain drugs, try them out on prisoners, and see if and how they die.”

Read more at wcpo.com

Filed Under: News

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RECOMMENDATION 52

Adoption of a rule directing that the trial judge is the appropriate authority for the appointment of experts for indigent defendants. The rule should further provide that the decision pertaining to the appointment of experts shall be made, on the record, at one of the prescribed Pre-Trial Conferences.

If defense counsel requests, the demand for appointment of the expert shall be made in-camera ex parte, and the order concerning the appointment shall be under seal.

Upon establishing counsels’ respective compliance with discovery obligations, the question of the appointment of experts (including determination of projected expert fees based upon analysis of expert’s time to be applied to the case as well as consideration of incremental payment of expert fees as case progresses) would be decided by the court, which decision would be subject to immediate appeal, under seal, to the appropriate Court of Appeals. The trial court judge shall make written findings as to the basis for any denial. Although concerns have been raised as to the ability of the Appellate Court to provide the anticipated, necessary expedited hearing within a reasonable time-frame, the Joint Task Force suggests that this issue be elevated to the status of a final appealable order and that the necessary expedited appellate process be spelled out in the statute.

RECOMMENDATION 54

Should the present process of appointment of indigent counsel by the judiciary continue, the main objective should always be to assure the best educationally experienced and qualified candidate, who is available (within the county or outside the county), and who is otherwise willing to take on the responsibilities associated with the case for an appropriate fee and accompanying expenses, is appointed. A uniform fee schedule for such services across the State of Ohio must be a necessary consideration to assure the equal protection and due process for the accused in a capital case.

RECOMMENDATION 55

Adoption of reporting standards to provide complete transparency of record, including requirements to ensure better record keeping by the trial judge and the provision of additional, detailed resource information necessary to assure strict compliance with due process, which information shall be submitted to the Supreme Court upon completion of the case. Such resource information may include unique Constitutional issues, unique evidentiary issues, significant motions, plea rationale, pre-sentence investigation, and any additional information required by the Rule 20 Committee or the Supreme Court of Ohio. Additional types of resource information could be developed as part of the mandated educational process conducted by the Ohio Judicial College.

RECOMMENDATION 56

The Joint Task Force believes that some of the recommendations above could be accomplished by the adoption of a separate Criminal Rule for Capital Cases. The Joint Task Force recommends that such a rule be adopted and provide for the mandatory training of attorneys and judges (Recommendation 49), the selection and appointment of indigent counsel in capital cases (Recommendation 51), and the enforcement of the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases and the Supplementary Guidelines for the Mitigation Function of Defense Teams (Recommendations 11 and 12).

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