Ruling affirms halt in Ohio executions

There hasn’t been an execution in Ohio in nearly 39 months, and it looks like the wait might be extended.

A 2-1 decision by a panel of the 6th U.S. Circuit Court of Appeals on Thursday blocked Ohio executions, which had been scheduled to resume May 10 with Ronald Phillips.

The panel of the Cincinnati-based court supported a Jan. 26 ruling by U.S. District Court Magistrate Judge Michael R. Merz that barred the state from using a threedrug protocol announced last fall. Merz declared the drug combination unconstitutional and blocked the pending execution of Phillips and those of Raymond Tibbetts and Gary Otte, which were set for this summer. The state appealed Merz’s ruling to the 6th Circuit.

The federal court panel said the state cannot use the paralytic drugs cited in the execution protocol released Oct. 6 by the Ohio Department of Rehabilitation and Correction.

The ruling, while narrow in scope, also confirmed problems with a sedative drug, midazolam, used in a previous troubled execution in Ohio — that of Dennis McGuire on Jan. 16, 2014 — and in lethal injections in other states.

“We are bound by the district court’s actual finding that ‘use of midazolam as the first drug in a threedrug execution protocol will create a substantial risk of serious harm,’” the appellate panel said.

The judges 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; Judge Raymond M. Kethledge dissented.

JoEllen Smith, spokeswoman for the Department of Rehabilitation and Correction, said the agency “remains committed to carrying out court-ordered executions in a lawful and humane manner.”

But Allen L. Bohnert, a federal public defender representing Phillips, said, “Ohio should conduct no more executions until it is able to develop a lethalinjection protocol that will comport with all state and federal laws.”

Calling the ruling “a very important decision in upholding the preliminary injunction against Ohio’s midazolam three-drug method of execution,” Bohnert said “the 6th Circuit is correct that this controversial method should not be used.”

The appeals-court majority said that if barbiturates are not available to Ohio, the state “still must rely on an execution protocol not involving pancuronium bromide or potassium chloride.”

Essentially, that invalidates Ohio’s three-step process.

In his dissenting opinion, Kethledge said the public defender and private attorneys who filed the appeal showed that 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 panel’s decision. The state could ask for the full appeals court to hear the case, or it could appeal the panel’s ruling to the U.S. Supreme Court.

Gov. John Kasich earlier this year rescheduled executions in line with the district court’s ruling.