Appeals Court Says Ohio Execution Protocol Doesn’t Cause Unconstitutional Pain

September 12, 2019by Marty Schladen
This November 30, 2009, photo shows the witness room facing the execution chamber of the "death house" at the Southern Ohio Correctional Facility in Lucasville, Ohio. (Caroline Groussain/AFP/Getty Images/TNS) *FOR USE WITH THIS STORY ONLY*

COLUMBUS, Ohio — The 6th U.S. Circuit Court of Appeals ruled Wednesday that just because an inmate feels like he’s being suffocated after a lethal injection, that doesn’t amount to cruel and unusual punishment.

A three-judge panel of the court, sitting in Cincinnati, said a federal judge in Dayton was wrong when he ruled in January that Ohio’s execution protocol is likely to create the sensation of drowning after the first of three drugs is administered, and then burning when another drug is given.

Ohio Gov. Mike DeWine put Ohio executions on hold and ordered correction officials to come up with a new intravenous protocol after U.S. Magistrate Judge Michael Merz decided that the existing protocol almost surely caused unconstitutional suffering. Merz said he would have blocked the execution of convicted killer Warren Keith Henness if not for a 2015 U.S. Supreme Court decision.

One cause of the suffering, Merz wrote, was the drowning sensation produced by the first drug, midazolam. Another cause, according to the judge, would be the burning sensation caused by the third, a heart-stopping drug, because midazolam doesn’t have the painkilling properties that drugs such as opioids do.

Not so, the three-judge panel wrote. Citing a 2019 U.S. Supreme Court decision, they wrote: “Consider: Midazolam may cause Henness to suffocate. But the Eighth Amendment only prohibits forms of punishment that seek to intensify an inmate’s death by ‘superadd(ing)’ feelings of ‘terror, pain, or disgrace.’”

They were quoting from Justice Neil Gorsuch’s opinion in Bucklew v. Precythe, the high court’s most recent ruling regarding the death penalty. In discussing hanging, Gorsuch was arguing that at the time the Eighth Amendment was adopted more than two centuries ago, people didn’t see hanging as intentionally cruel, unlike practices such as disemboweling or burning the condemned while they were still conscious.

Despite the appeals court ruling, it’s still an open question whether DeWine will now allow executions to proceed. When he initially delayed them, he said: “Ohio is not going to execute someone under my watch when a federal judge has found it to be cruel and unusual punishment.”

And then, after The Columbus Dispatch reported that Ohio was using drugs in executions over the objections of the manufacturers and distributors, DeWine in July said that Ohio could no longer get the drugs because the suppliers had threatened to cut off all medicine to the state for any use. DeWine said the state would look for a non-intravenous execution protocol.

But at the same time, the state’s attorneys have been in court fighting to use the existing one. Or at least, the 6th Circuit believes that’s the case.

“Ohio has said that it intends to resume executions with this protocol if we approve,” the judges wrote in their six-page ruling.

DeWine press secretary Dan Tierney said further litigation in the case is likely, so he can’t comment on whether DeWine might allow further use of the protocol if the drug-supply problems can be solved.

“That concern remains — regardless of the ruling or concerns about cruel and unusual punishment,” Tierney said.

The Office of the Federal Public Defender, which represents Henness and other inmates on Ohio’s death row, hasn’t decided whether to ask for the case to be re-heard by the entire 6th Circuit or whether to appeal to the U.S. Supreme Court, said David Stebbins, a lawyer in the office. However, he did take issue with Wednesday’s ruling.

“After an extensive evidentiary hearing on the complex medical and scientific issues with Ohio’s three-drug lethal-injection protocol with the risky sedative midazolam, the district court issued a nearly 150-page decision finding the protocol causes pain and suffering beyond what the U.S. Constitution permits,” Stebbins said in an email.

“Today’s brief opinion concludes that the district court was incorrect, despite the court’s reliance on the extensive testimony of some of the nation’s leading experts that midazolam cannot prevent pain, and indeed causes severe pain comparable to ‘a torture tactic.’”

Robert Dunham, executive director of the Death Penalty Information Center, said Wednesday’s ruling gives Henness’ attorneys grounds for appeal. He said the court’s job is to determine whether the facts described by Merz were supported by the record. In this case, the record consists of testimony by what Merz regarded as leading experts in anesthesia and the physiology of pain. The appellate court’s second job, Dunham said, was to determine whether the district judge’s legal conclusions were sound.

But the 6th Circuit panel’s opinion mixes those jobs, saying that Henness didn’t show that he was likely to suffer severe pain, and that even if he did, it would still not violate the Eight Amendment, Dunham said.

“It looks like (the 6th Circuit) doesn’t want to admit the reality of what Ohio’s protocol does,” Dunham said.

He added, however, that given the Supreme Court’s conservative majority, Henness’ chances of prevailing there might be slim.

Meanwhile, an anti-death-penalty group said the decision illustrates the absurdity of the entire process.

“Rather than debating how much pain we are willing to allow people being executed to endure, we should be debating whether the death penalty truly serves the justice system and people of our state,” Hannah Kubbins, program director of Ohioans to Stop Executions, said in an email. “Governor DeWine said he wouldn’t use the midazolam execution method, and the 6th Circuit’s opinion shouldn’t change that. The facts and science about the protocol have not changed.”


© 2019The Columbus Dispatch (Columbus, Ohio)

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