The 6th U.S. Circuit Court of Appeals today upheld an injunction blocking the planned resumption of executions in Ohio.
By a 2-1 decision, a federal appeals court panel supported a January 26 ruling by U.S. District Court Magistrate Judge Craig Merz that barred the state’s use of a three-drug protocol. Merz declared it unconstitutional and blocked the pending execution of Ronald Phillips, now scheduled for May 10, as well as those of Raymond Tibbetts and Gary Otte, set for this summer. The state appealed the ruling to the 6th Circuit.
The federal panel said the state cannot use the paralytic drugs outlined in an execution protocol released October 6 by the Ohio Department of Rehabilitation and Correction.
The ruling, while narrow in scope, confirmed problems with a specific drug, midazolam, which had been used in a previous troubled execution in Ohio and other states.
“We are bound by the district court’s actual finding that ‘use of midazolam as the first drug in a three-drug execution protocol will create a substantial risk of serious harm,’” the appellate panel said.
The judges also chided the state for making “false representations that there was ‘no possibility’ the state would use those drugs ‘going forward.’”
Judges Karen Nelson Moore and Jane Branstetter Stranch ruled against the state in today’s decision, with Judge Raymond M. Kethledge dissenting.
The majority said if barbiturates are not available to Ohio, the state must “still must rely on an execution protocol not involving pancuronium bromide or potassium chloride. Therefore, having reviewed the issue de novo, we come to the same conclusion as the district court. The state of Ohio is judicially estopped from using pancuronium bromide or potassium chloride for executions.”
In his dissenting opinion, Kethledge said the public defender and private attorneys who filed the appeal showed there is “some risk that Ohio’s execution protocol may cause some degree of pain, at least in some people.” But quoting a prior case, the judge said some level of pain is “inherent in any method of execution—no matter how humane.”
“The potential risk of pain here is acceptable,” Kethledge said.
Dan Tierney, spokesman for Attorney General Mike DeWine, said the state will review the decision to see what legal steps should be taken next.
JoEllen Smith, spokeswoman for the Department of Rehabilitation and Correction, said the agency “remains committed to carrying out court-ordered executions in lawful and humane manner.”
Gov. John Kasich earlier this year rescheduled the executions in line with the district court ruling.
Allen L. Bohnert, a federal public defender representing Phillips, called the ruling “a very important decision in upholding the preliminary injunction against Ohio’s midazolam three-drug method of execution … The 6th Circuit is correct that this controversial method should not be used. Ohio should conduct no more executions until it is able to develop a lethal injection protocol that will comport with all state and federal laws.”
Source: Canton Rep