In Ohio, an execution once scheduled for Feb. 15 is no longer on the calendar. A federal judge ruled recently that the state's new 3-drug process is unconstitutional, and he took particular issue with a drug familiar to Oklahoma officials.
Magistrate Judge Michael Merz agreed with the attorneys for 3 death row inmates that it wasn't certain the sedative midazolam wouldn't cause "substantial risk of serious harm," which is the bar the U.S. Supreme Court set in a 2008 case from Kentucky.
Midazolam was the focus of a legal challenge in Oklahoma brought in 2015. Attorneys for Richard Eugene Glossip, John M. Grant, Benjamin Robert Cole and others objected to the sedative's use in a case that went to the U.S. Supreme Court. There, justices sided with the state and rejected arguments that using midazolam could lead to an unconstitutional level of pain.
The ruling meant Oklahoma could resume executions, which had been on hold pending the outcome of that case. But no one has been executed here since Charles Warner in January 2015, due not only to legal challenges, but also concerns about the state's protocol and its ability to get the necessary drugs.
Ohio now finds itself in a similar situation. Merz not only nixed the state's ability to use midazolam, but also barred Ohio from using the other 2 drugs it had been using. Instead, he said the state should look to use a compounded version of the barbiturate pentobarbital.
Oklahoma would prefer to use pentobarbital, but like Ohio and other states has been unable to obtain it because manufacturers have stopped supplying it for executions. That has led officials to look for other drugs, some of which have been problematic. In the Warner execution, for example, it was learned several months after the fact that the wrong third drug had been used.
Oklahoma now has 48 inmates on death row, 13 of whom have exhausted their appeals and will be eligible for execution dates when the state resumes lethal injections. The unknown is when that might occur - a moratorium in place since late 2015 won't be lifted until all federal and state investigations into the state's death penalty are finished, and changes to state execution protocol are completed and ready to be implemented by the Department of Corrections.
Oklahoma's isn't the only death chamber getting little use. In a story last week, The Associated Press highlighted 10 active death penalty states - in 7 of those, no executions are scheduled. Ohio has enough drugs on hand to carry out 4 executions, but the magistrate's Jan. 26 ruling has erected a roadblock.
It will be interesting to see how quickly Oklahoma is able to ramp up once its revamped protocol is approved. The state carried out zero executions in 2016, the 1st time that has happened since 1994. Might Oklahoma go 2 consecutive years without an execution? If so that would be notable, but perhaps not terribly surprising given today's climate.
Source: The Oklahoman Editorial Board, February 6, 2017
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