COLUMBUS — The full bench of a Cincinnati appeals court on Wednesday lifted a preliminary injunction that has prevented Ohio from resuming executions of death-row inmates.
The move could mean that the state will proceed with the scheduled execution on July 26 of Ronald Phillips, of Summit County, who was convicted in the 1993 rape and murder of his Akron girlfriend’s 3-year-old daughter.
An attorney for the inmates who sued said he will ask the U.S. Supreme Court to hear an appeal.
The majority on the U.S. 6th Circuit Court of Appeals held that U.S. District Magistrate Judge Michael Merz provided “little support for its conclusion that Ohio’s three-drug protocol creates an unconstitutional risk of pain.”
The majority overturned the preliminary injunction he put in place earlier this year. Ohio has not executed an inmate in more than three years.
“In sum, we will grant that the plaintiffs have shown some risk that Ohio’s execution protocol may cause some degree of pain, at least in some people,” Judge Raymond Kethledge wrote for the majority. A 2008 appointee of Republican President George W. Bush, he was the sole dissenter in a prior 2-1 decision that upheld Judge Merz’s preliminary injunction.
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“But some risk of pain ‘is inherent in any method of execution — no matter how humane’,” he wrote. “And the Constitution does not guarantee ‘a pain-free execution.’ 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.
“But the relevant legal standard, as it comes to us, requires the plaintiffs to show that Ohio’s protocol is ‘sure or very likely’ to cause serious pain,” Judge Kethledge wrote. “The district court did not meaningfully apply that standard here. And the plaintiffs have fallen well short of meeting it.”
Judge Karen Nelson Moore, an appointee of Democratic President Bill Clinton and part of the 2-1 majority that upheld the injunction, dissented.
“The majority has decided to forgo a trial on the merits of Plaintiffs’ constitutional claims and to allow the State of Ohio to execute Plaintiffs without such a trial,” she wrote. “More egregiously, the majority has decided to forgo a trial even though the district court, which has the better view of the evidence, determined that Plaintiffs should have a trial because they are likely to succeed on the merits of their constitutional claim.”
Ohio executions have been on hold since the problematic execution of Dennis McGuire, of Montgomery County, in early 2014. Witnesses described McGuire as making choking noises and struggling against his restraints before he died during an unusually long 26-minute process.
In part, the inmates challenging the process have argued that the first drug to be used in Ohio’s revised execution protocol, the sedative midazolam, would not sufficiently render the condemned unconscious and unable to feel pain from the second and third drugs that would shut down breathing and induce cardiac arrest.
Judge Merz had determined that enough questions remain to warrant holding off on more executions until the issue could be more deeply explored at trial.
But after the previous three-judge panel had upheld Judge Merz’s decision, Attorney General Mike DeWine convinced the entire 6th Circuit bench of the court to reconsider the decision. the court held a new round of arguments two weeks ago and has now reached the opposite conclusion.
“Multiple executions have demonstrated that midazolam is not a suitable drug for lethal injection and especially when used with the two excruciatingly painful drugs Ohio abandoned in 2009,” said Allen Bohnert, one of the attorneys representing the death-row inmates who sued the state.
“Today’s 8-6 narrowly divided ruling doesn’t change that fact,“ he said. “Indeed, this close split between the appellate court judges further demonstrates the underlying reasonableness of the district court’s order blocking the executions until a trial could be held. Ohio should not take the risk of continued botched executions by going back to using these dangerous, unsuitable drugs.”
Midazolam was the first of two drugs used to execute McGuire. The state abandoned that protocol afterward, but it has been unable to obtain the drugs that it would most prefer to use, the barbiturates pentobarbital or sodium thiopental. Their European and domestic manufacturers have refused to make them available to put people to death.
The state ultimately decided to revert back to a three-drug process using a massive dose of midazolam, 500 milligrams, as the first drug followed by rocuronium bromide, a paralytic agent, and finally potassium chloride to stop the heart.
Ohio has never used this specific second drug before.
After a series of moratoriums from courts and rescheduled dates from Gov. John Kasich, the scheduled lethal injections extend into 2021.
The Department of Rehabilitation and Correction “remains committed to carrying out court-ordered executions in a lawful, humane, and dignified manner,” DRC spokesman JoEllen Smith said.
Contact Jim Provance at: jprovance@theblade.com or 614-221-0496.
First Published June 29, 2017, 4:59 a.m.
