At least two companies that manufacture drugs used in the Ohio death penalty are adamantly opposed to the use of their products in executions, raising more questions about whether the state has been obtaining them through subterfuge.

Asked if it tells suppliers that their products are to be used in executions, a spokeswoman for the agency that buys the drugs said officials there don't know their end use. However, a pharmacist with the agency testified in 2014 that she purchases the drugs and drives drives them to the death house.

And as Ohio devises a new death-penalty protocol, Gov. Mike DeWine won't commit to telling drug makers and distributors when the state buys their products that they're intended for use in the death chamber.

In response to a request for records relating to execution drugs, the Ohio Department of Mental Health and Addiction Services provided The Dispatch this week with purchase orders and invoices for midazolam, the first drug used in Ohio's current protocol as a sedative, and potassium chloride, the third drug, which is intended to stop the condemned person's heart.

In an earlier response, the agency provided invoices for the same drugs that the mental health department sent to the Southern Ohio Correctional Facility near Lucasville, where the death chamber is housed.

DeWine this year paused upcoming executions after a federal judge sitting in Dayton determined that midazolam didn't have the pain-killing properties that supporters claimed. The judge also ruled that without such analgesic properties, injection of potassium chloride “would feel as though fire was being poured” into a prisoner’s veins.

But as prison officials grapple with how to devise a new method to carry out executions, they must contend with how to get lethal drugs. A growing number of drug makers and distributors have publicly declared they won't allow their products to be used in executions. They generally don't take a position on the death penalty, but say they make their products for medical purposes and executions don't qualify.

Such companies include New Jersey-based Hikma, whose Columbus plant employs 1,100. A wholesaler in January supplied the Department of Mental Health and Addiction Services with $800 worth of midazolam made by Hikma under its former name, West Ward Pharmaceuticals.

"We object in the strongest possible terms to the use of any of our products for the purpose of capital punishment," Hikma says on its website, which specifically lists midazolam 5MG/ML vials, the type supplied to Ohio, as one such drug.

"Not only is it contrary to the intended label use(s) for the products, but it is also inconsistent with our values and mission of improving lives by providing quality, affordable health care to patients."

A company spokesman declined to comment for this story, but Hikma last year sued Nevada to stop it from using fentanyl it made in a planned execution there, and it notified Nebraska to keep its products out of that state's execution chamber as well.

The documents from Mental Health and Addiction Services show that Valley Forge, Pennsylvania-based wholesaler AmerisourceBergen supplied Ohio with the Hikma-made midazolam and potassium chloride from an unknown manufacturer.

"We buy pharmaceuticals directly from manufacturers, and we adhere to their restrictions on the distribution of their products, including those that prohibit the sale of certain products to correctional facilities," company spokesman Gabe Weissman said in an email. "AmerisourceBergen does not receive patient or clinical information from the licensed and registered pharmacies who are our wholesale distribution customers.

"Resultingly, we have limited ability to track if a product was administered to a patient or if it was resold to another pharmacy or transferred between state agencies. If we do conclude that a pharmacy violated a contract with AmerisourceBergen we’ll look into appropriate actions to address that issue."

Another distributor, Gulf Coast Pharmaceuticals Plus, of Ocean Springs, Mississippi, in Nov. 2017 shipped the mental health department potassium chloride made by Pfizer, according to the Ohio department's records. Last September it shipped the same chemical made by Pfizer subsidiary Hospira.

Gulf Coast Pharmaceuticals couldn't be reached for this story. But Pfizer is adamantly opposed to its drugs being used in executions.

"Pfizer makes its products to enhance and save the lives of the patients we serve," spokesman Steven Danehy said in an email. "We strongly object to the use of any of our products in the lethal injection process for capital punishment.

"Since 2016, we have informed the Ohio Department of Rehabilitation and Correction on multiple occasions that Pfizer strongly objects to the use of its products as lethal injections for capital punishment. We asked them to return any Hospira or Pfizer manufactured Restricted Product in their possession and provided them with procedures to follow to return for a full refund."

Robert Dunham of the Death Penalty Information Center has said that the Department of Mental Health and Addiction Services runs the risk of losing suppliers if they think their drugs might be bound for the death chamber. But the department, which bills the department of rehabilitation and correction as a separate entity, says it doesn't know for what some of the drugs its pharmacy buys are used.

"OhioMHAS is not provided with information on the intended use of the drugs we order on behalf of customers," agency spokeswoman Jamie Carmichael said in an email.

The agency says it doesn't know that some of the drugs it buys are intended for use in executions, but testimony in a 2014 federal court hearing about Ohio's death penalty protocol indicates otherwise. Mary Denise Dean, a pharmacist for the Ohio Department of Mental Health and Addiction Services, testified that she ordered the drugs. She said she had them delivered to the agency’s Columbus headquarters and then drove them to the Southern Ohio Correctional Facility near Lucasville, where the state’s death house is located.

In a phone interview Thursday, DeWine, who until January was Ohio attorney general, also said he didn't know whether the state has been informing distributors and manufacturers whether their products would be used in executions.

"I don't know about your specific question about what suppliers know," he said, adding that it would be premature to decide whether to provide that information until the new protocol is formulated.

As manufacturers and distributors have became reluctant to supply death drugs, Ohio passed a law that in 2015 allowed state officials to withhold the names of companies involved. It expired on March 23, 2017. Since then — and since the drugs in the invoices released by the state were obtained — Ohio has executed two men and attempted to execute another.

DeWine said he didn't know when the correction department would complete its new lethal-injection protocol. Asked if he thought Ohio has seen its last execution, he declined to answer.

 

mschladen@dispatch.com

 

@martyschladen