Matthew T. Mangino
June 29, 2017
Ohio has not carried out an execution since January 2014. That may soon change. This week the federal Sixth Circuit Court of Appeals ruled that the state is free to use a new three-drug protocol to carry out lethal injections.
In 2010, Ohio carried out 10 executions, second only to Texas, the most prolific state in terms of executions in the modern era of the death penalty. Ohio continued to regularly carry out executions through 2013.
In the weeks leading up to 2014, Ohio was struggling to get access to execution drugs. On Jan. 16, Ohio became the first state in the nation to use a new and untried lethal-injection protocol involving midazolam and hydromorphone, a sedative and morphine derivative.
It did not go well. Convicted killer Dennis McGuire took 25 minutes to die. Prior executions took about 12 to 15 minutes. McGurie appeared to gasp several times during the execution, according to the Cleveland Plain Dealer.
He made several loud snorting or snoring sounds during the time it took him to die. It was one of the longest executions since Ohio resumed capital punishment in 1999, reported The Associated Press.
Executions stopped in Ohio. In an effort to lure compounding pharmacies into mixing execution drugs the state passed a secrecy law. The bill would provide 20 years of anonymity to compounding pharmacies that prepare drugs used in Ohio executions. It would also permanently keep secret the identities of pharmacy employees who prepared the drugs and prison officials who carry out executions.
That didn’t help. The state then looked to buy drugs from foreign countries. However, the Food and Drug Administration sent a warning letter to the Ohio Department of Rehabilitation and Correction. According to the Plain Dealer the letter suggested that it would be “illegal” for the state to import sodium thiopental -- an execution drug.
All along, the challenges to the new drug protocol continued mount. This past January, Dayton federal Magistrate Judge Michael Merz found that there was a “substantial risk of serious harm” in using midazolam, a sedative for executions. He granted an injunction blocking all executions.
In April, a three judge panel of the Sixth Circuit Court ruled 2-1 to uphold the injunction. The panel also barred the use of any protocol that contained potassium chloride, which stops the heart, and any drug that acts as a paralytic agent.
The case returned to the Sixth Circuit to be heard en banc -- all of the judges would rehear the case. This time, in an 8-6 ruling the Sixth Circuit rejected the injunction.
Judge Raymond Kethledge, who wrote the court’s opinion found, “some risk of pain ‘is inherent in any method of execution -- no matter how humane.‘” He continued, “the Constitution does not guarantee ‘a pain-free execution.’”
According to the Toledo Blade, Kethledge suggested different people may have different moral intuitions as to whether -- taking into account all the relevant circumstances -- “the potential risk of pain here is acceptable.”
This case may ultimately make its way to the U.S. Supreme Court. In 2008, in a case out of Kentucky, the high court ruled that lethal injection did not violate the Eighth Amendment ban against cruel and unusual punishment. In fact, the Supreme Court has never found a method of execution to be cruel and unusual. That list includes hanging, firing squad, electric chair and gas chamber.
Ohio will resume executions using the drugs midazolam, rocuronium bromide and potassium chloride. One of the three inmates challenging the execution protocol is Ronald Phillips. He is the first inmate scheduled to die. His execution is scheduled for July 26.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.
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