CINCINNATI — The state of Ohio today urged a federal appeals court to remove a barrier to its resumption of executions using a revised three-drug process after a hiatus of more than three years.
At issue is whether the first drug in the state's latest protocol, the anti-anxiety medication Midazolam, renders the condemned inmate deeply unconscious and incapable of experiencing pain as the followup drugs shut down breathing and stop the heart.
U.S. Magistrate Judge Michael R. Merz issued a preliminary injunction in January prohibiting the state from proceeding with its first three scheduled executions because of the “consensus” of experts that the use of Midazolam may not prevent unconstitutionally cruel and unusual punishment.
State Solicitor Eric Murphy urged the U.S. 6th Circuit Court of Appeals to overturn that ruling, arguing that the inmates must not only prove that Ohio's process would not be constitutional but point to an alternative that is feasible.
He argued that the fact that witnesses described movement in past executions after the injection of Midazolam does not mean that the inmate was experiencing pain.
“I don't think movements are dispositive here...,” he said. “Even with respect to barbiturates, we would anticipate movement with the use of the third drug.”
Erin Gallagher Barnhart, of the U.S. Public Defenders' office, has offered two possible alternatives.
The first would be the use of pentobarbital, a barbiturate that the state would also prefer to use but hasn't been able to obtain because its manufacturers object to its use in putting people to death.
The other would be to get rid of the second drug, the paralytic agent, instead using just Midazaolam, coupled with tight medical monitoring to ensure unconsciousness, followed by the drug inducing cardiac arrest.
“We don't think Midazolam can do what the state says it can do,” Ms. Barnhart told the court.
As one judge noted, removing the paralytic agent from the mix, would presumably make it clearer whether the inmate was experiencing pain, something that might otherwise be shielded.
“I think it's an untested method,” said Mr. Murphy, suggesting that if Midazolam succeeding in preventing pain from the heart drug it would do the same for the paralytic agent.
Magistrate Judge Merz's decision prompted Gov. John Kasich to reset the execution schedule, postponing eight executions as part of a backlog that now extends into March, 2021. The next scheduled for lethal injection at the Southern Ohio Correctional Facility in Lucasville on May 10 is Ronald R. Phillips, convicted in the 1993 rape and murder of his Akron girlfriend’s 3-year-old daughter.
“I continue to wonder: (Judge Merz) seems to base it on uncertainty instead of certainty, and that's a mistake,” said Judge Raymond M. Kethledge, an appointee of Republican President George W. Bush.
Judge Jane Branstetter Stranch, an appointee of Democratic President Barack Obama, noted that witnesses of multiple executions had not only described movement in executions that used midazolam, but the type of movements they had not seen before.
“How many people do we have to see go through horrific executions...until somehow you can wrangle all the experts on the same page?” she asked.
The state wants to use a massive dose of midazolam, 500 milligrams, followed by rocuronium bromide, the paralytic agent, and finally potassium chloride to stop the heart. While the U.S. Supreme Court has generally upheld the constitutionality of similar protocols, this would mark the first time Ohio would use rocuronium bromide.
Midazolam was the first drug used in the problematic execution of Dennis McGuire, of Montgomery County, in January 2014, the last execution carried out in Ohio. Witnesses described him as struggling against his restraints and making choking and snorting sounds for about 20 minutes instead of falling unconscious according to plan.
Contact Jim Provance at: email@example.com or 614-221-0496.
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