It's All Going Horribly Wrong On Ohio's Death Row

What's going on, Ohio? The state's death row, on which 139 inmates are currently waiting to be executed, has hit the spotlight with the case of 40-year-old Ronald Phillips. Phillips, a convicted child rapist and murderer, was scheduled to die by lethal injection Thursday, but at the eleventh hour, State Governor John Kasich stepped in and postponed the execution. Phillips' case is unique because, firstly, he's the state's guinea pig for a brand-new lethal injection, which has never been tried on humans. Secondly, Phillips has begged Ohio to let him donate his organs after his death. Organ donation after state execution is unprecedented in America, and, by postponing their scheduled capital punishment to examine his request, Ohio appears to be considering it.

Apparently, they figured they might as well break a whole bunch of ethical precedents in one go. Because what could go wrong?

Um, a lot. Let's start with the new drug cocktail: there's no body of research about the dual injection that's intended to kill Phillips, and no indication as to how well it'll work. Ohio, along with a bunch of other states, ran out of its standard execution drug, pentobarbital, last year. With 139 inmates waiting on its death row, the state now has to find a new drug.

After pentobarbital supplies ran dry, Florida faced the same problem, points out Slate. In October, Florida executed William Happ using the same drug, midazolam, that's scheduled to sedate Phillips. It didn't work too well, as the Associated Press wrote at the time: Happ “remained conscious longer and made more body movements after losing consciousness than other people executed recently by lethal injection under the old formula.” In other words, we're talking about a slow, and possibly painful, death.

Phillips is, understandably, not happy about being the state's go-to guinea pig. After Ohio announced that Phillips would be the first to try to drug, his attorneys attempted to block his execution — or, they wrote, at least postpone it on the grounds that this would give them more time to prepare an argument against the new drug cocktail. This request was denied by Ohio governor John Kasich in July.

It's hard to say if what came next was sincere, or a last-ditch attempt to postpone his execution. On Monday, just three days before he was scheduled to die, Phillips wrote to the Ohio prison board begging to be allowed to donate his organs. His mother's kidneys were failing, he wrote, and his sister suffered from a heart condition; Phillips wanted to donate primarily to his family, but also to others in need of aid.

In China, death-row inmates are allowed the option to donate their organs after death, and state press attests that 65 percent of the country's transplantable organs come from China's death row. In America, though 18 people die every day from a shortage of available organs, there are a myriad of ethical concerns opposing the practice. As Bustle reported Monday:

Phillips, for example, was convicted of raping and murdering his girlfriend’s three-year-old daughter. Some people are adamant that the idea of murderers’ organs living on in ordinary people’s bodies is grotesque. This may not be a pragmatic argument, but is an effective one: Imagine receiving a donor heart, and then discovering that it had powered a triple homicide.
There are plenty of other concerns: Could we develop into a society in which organs are viewed as more important than the people who house them? What would that lead to? If an inmate is given a more lenient sentence and agrees to become a donor, as legislators have suggested, would this undermine the justice system? Not to mention, inmates are more likely to have infectious diseases, like hepatitis and H.I.V., and so may be less eligible for donation than the general population.
The details of preparing a body for transplant would also compromise the entire execution process: the U.S. would have to come up with a new set of rules and drugs for execution, for example. Additionally, the flow of oxygen would have to be maintained after death for the transplants would be viable, meaning that the inmate wouldn’t, technically, die instantly. This would compromise the nature of a legal execution.

It was expected that the Ohio prison board would deny Phillips' request to becme a donor, and by Tuesday, they had. The request was "made at a very late hour," said Ohio prison officials, citing the logistical and security issues and the "unprecedented" nature of the act. Shortly thereafter, governor Kasich stepped in and postponed Phillips' execution date to next July. He was keen to see if Phillips' "nonviable" organs, such as kidneys, were OK to be donated. In his official statement, Kasich added:

Ronald Phillips committed a heinous crime for which he will face the death penalty. I realize this is a bit of uncharted territory for Ohio, but if another life can be saved by his willingness to donate his organs and tissues, then we should allow for that to happen.

A bit of unchartered territory? This has, quite literally, never happened in America: for a start, the Federal Bureau of Prisons does not permit death row inmates to donate organs upon death. No state has ever passed a law allowing death-row inmates to do so. Opposing the practice is the World Medical Association, the Transplantation Society, the American Medical Association, and the American Society for Transplant Surgeons.

In 2005, a Delaware inmate was able to donate his kidney to his mother, but he wasn't facing immediate execution, and continued to live without said kidney. This is very different. To allow Phillips to donate "non-viable" anything — bone marrow, eye tissue, lungs, liver, kidneys — would be a gross breach of national code, a worrying setting of a precedent, the first step of what opponents have feared could be a "slippery slope."

Why on earth could this be allowed to happen? It may be that the prison system is given far too much freedom to decide on these issues by itself, writes Merrill Cook at PolicyMic:

One thing Ron does shed light on, however, is the amount of trust we put in the prison system to settle a wide range of issues. As the ACLU often insists, the prison system is often "out of sight, out of mind." Whoever thinks prisons run on their own has never babysat. There's a reason you call to check on the babysitter every once in a while.
Our prison system has large segments that are for-profit. It's a mass of overcrowding, misguided quotas, and "wars" on stuff (we currently hold one out of every four of the world's prisoners), as well as horrifying solitary confinement stories. This is the prison system we're letting decide questions on medical ethics.

This is worrying in itself, but there's more: it's important to note that the state's governor, Kasich, was the one to personally stay Phillips' execution, and require medical personnel to examine the possibility of organ donation. In short, why has no-one turned to Kasich — the jail board; his federal superiors; his advisors — and said: "Hey, do you have any idea what sort of practice you're opening the door to here?"

Even if Phillips isn't allowed to donate, and with all of the furor around the issue he probably won't, Kasich has raised the possibility that organ donation after death-row execution could, one day, be an option. He's also illustrated a very pertinent point: with this specific issue, state legislators like himself have the ability to make ethical decisions for the entire nation. And no, that shouldn't be happening.