Ohio can use 3-drug combination to resume executing those on death row, appeals court says

The 6th U.S. Circuit Court of Appeals on Wednesday said it would allow the state of Ohio to use a certain 3-drug mixture to carry out lethal injections, paving the way for the state to resume executing those on death row.

The full court's opinion, decided 8-6 mostly along the court's conservative-liberal split, reverses a preliminary injunction granted by federal magistrate Judge Michael Merz in Dayton in January, as well as a three-judge appellate panel's April decision to uphold the injunction while the case heads to trial.

Merz found there is a "substantial risk of serious harm" in using midazolam, a sedative that is one of the three drugs the state endeavors to use in executions.

Judge Raymond Kethledge, a George W. Bush appointee writing for the majority, wrote that "some risk of pain 'is inherent in any method of execution -- no matter how humane.'" He also wrote that people have differing views on whether the potential for pain is acceptable, but that the plaintiffs must show the drug combination is "'sure or very likely' to cause serious pain."

The anti-death-penalty advocates who brought the case said they would ask the Supreme Court to review the 6th Circuit's decision.

"Multiple executions have demonstrated that midazolam is not a suitable drug for lethal injection, and especially when used with the 2 excruciatingly painful drugs Ohio abandoned in 2009. Wednesday's 8 to 6 narrowly divided ruling doesn't change that fact," attorney Allen Bohnert said in a statement.

Ohio hasn't performed an execution since January 2014, when it took killer Dennis McGuire 25 minutes to die from a previously unused execution drug combination. The state chose a new mixture and scheduled executions, though they have repeatedly been pushed back because of the most recent legal challenge.

The state's new proposed blend includes midazolam, as well as potassium chloride, which stops the heart, and a paralytic agent.

McGuire was administered a combination that included midazolam. Witnesses said he appeared to gasp several times during his execution and made loud snorting or snoring sounds.

"Ohio should not take the risk of continued botched executions by going back to using these dangerous, unsuitable drugs. This is especially true because Ohio still has open avenues where it may be able to obtain reliable execution drugs," Bohnert's statement said.

The challenge to the new mixture was made by death row inmates Gary Otte, Ronald Phillips and Raymond Tibbetts. Phillips, who raped and killed a 3-year-old girl in Akron in 1993, is the first inmate scheduled to die, with an execution date set for July 26.

A spokeswoman for the Ohio Department of Rehabilitation and Correction said in an email that the department "remains committed to carrying out court-ordered executions in a lawful, humane and dignified manner."

Kethledge wrote that Merz applied the wrong standard in determining the level of harm a person being executed could be exposed to with the 3-drug combination.

He also wrote that the state proved viable alternatives to the combination -- namely sodium thiopental or pentobarbital -- were not readily accessible.

Judge Karen Nelson Moore, who authored a previous opinion striking down the state's proposed use of the combination, wrote the dissent for the mostly-liberal group of judges.

But it was Judge Jane Stranch, a Barack Obama appointee, who opposed the ruling in the most blatant language.

Writing separately, Stranch wrote that certain drug makers have refused to sell the alternative drugs to states to carry out executions, and that the majority's decision ignores the possibility that the refusal to sell "may well evidence a recognition of changing societal attitudes toward the death penalty and a conclusion -- whether based on principle, profit motivation, or both -- that the business in which drug companies engage, selling drugs that improve health and preserve life, is not consistent with selling drugs that are used to put people to death."

She wrote that questions about the death penalty are closely intertwined with issues regarding unfairness in the criminal justice system.

Source: cleveland.com, June 28, 2017

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