Federal judge: Ohio's 3-drug death penalty cocktail poses 'substantial risk of serious harm'

A federal magistrate judge on Thursday barred the use of a 3-drug cocktail the state of Ohio planned to use to execute death-row inmates, declaring the method the state prefers to be unconstitutional.

Magistrate Judge David Merz of Dayton also halted the executions of 3 inmates scheduled to be executed in the coming months, 2 of which came from Northeast Ohio.

Merz, in his 119-page order, ruled that there were enough problems with all 3 of the drugs Ohio intends to use in its execution protocol to warrant this disallowance. 2 states, Arizona and Florida, have discontinued the use of 1 of the drugs, named midazolam.

"The Court concludes that use of midazolam as the 1st drug in Ohio's present 3-drug protocol will create a 'substantial risk of serious harm' or an 'objectively intolerable risk of harm' as required by (Supreme Court precedent)," Merz wrote.

The ruling is a success for the inmates challenging Ohio's execution protocols and anti-death-penalty advocates who have sought to chip away at the state's ability to execute people since executions resumed in 1999. It may be short lived, though, as the ruling is all but guaranteed to be appealed.

A spokeswoman for Ohio Attorney General Mike DeWine's office said the office is reviewing the decision.

Ohio hasn't executed anyone since January 2014, when it took killer Dennis McGuire 25 minutes to die from a previously unused execution drug combination. McGuire was administered a cocktail that included midazolam. Witnesses said he appeared to gasp several times during his execution and made loud snorting or snoring sounds.

State officials and the courts put executions on hold until the state picked a new lethal-injection drug combination of midazolam, rocuronium bromide and potassium chloride last October. The challenge that led to Merz's ruling Thursday was also borne out of McGuire's execution.

During a hearing earlier this month, Merz heard testimony on all 3 drugs. His ruling Thursday said that the state cannot use any cocktail that contained potassium chloride or rocuronium bromide, a paralytic agent, since the state told a court in a previous proceeding that it would not use such drugs during future executions.

Those scheduled to die in the next few months included:

- Ronald Phillips, an Akron man convicted 1993 for raping his girlfriend's 3-year-old daughter and beating her to death. His execution was scheduled for Feb. 15.

- Gary Otte, an Indiana man who shot and killed 2 Parma residents during robberies in 1992. His execution was scheduled for March 15.

- Raymond Tibbetts, a Cincinnati-area man convicted in 2001 for murdering Judith Sue Crawford and Fred Hicks. His execution was scheduled for April 12.

Ohio has had trouble in recent years getting drugs to use for lethal injections in part because pharmaceutical companies don't want their products used for killing people.

In 2014, state lawmakers passed a secrecy law hoping to encourage small-scale drug manufacturers called compounding pharmacies to make its lethal-injection drugs. That law was challenged, though courts have declined to declare the law unconstitutional.

Source: cleveland.com, January 26, 2017

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