COLUMBUS — The lethal injection gurney in the death house at the Southern Ohio Correctional Facility in Lucasville has gone unused for more than three and a half years.
That may change Wednesday with the planned execution of Ronald R. Phillips, 45, who is on death row for the Jan. 18, 1993 murder and rape of his Akron girlfriend’s 3-year-old daughter, Sheila Marie Evans.
A federal appeals court in June lifted the latest legal barrier that had prevented the state from moving forward. Phillips’ lawyers last week asked the U.S. Supreme Court to intervene and are awaiting an answer.
Ohio has not put someone to death since Dennis B. McGuire, 53, of Preble County, was executed on Jan. 16, 2014, using for the first time a two-drug process that the state has since abandoned.
Witnesses described McGuire as having an unprecedented reaction to an Ohio lethal injection: making choking or snorting sounds for several minutes, clenching and unclenching his fists, and struggling against his restraints after the drugs—the sedative midazolam and the morphine derivative hydromorphone — began to flow during an unusually long 26-minute process.
Similar problems were reported in other states that used midazolam as part of their processes.
More than three years of official and unofficial moratoriums triggered by court decisions and Gov. John Kasich followed as the state struggled to find the drugs it would prefer to use, the powerful barbiturates pentobarbital or sodium thiopental.
Domestic and foreign manufacturers of those drugs refuse to make them available for executions.
There were attempts to import the drugs. State lawmakers dangled the promise of at least temporary anonymity to compounding pharmacies in hopes one would be willing to replicate the drugs from scratch.
Finally, the state settled on a new three-drug protocol, a combination it has never used.
It plans to resurrect midazolam as the first drug to put Phillips to sleep. This time it will use 500 milligrams compared to 10 mg with McGuire.
The execution team will then proceed with rocuronium bromide, a paralytic agent designed to shut down respiration, and then potassium chloride to induce cardiac arrest.
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It will mark the second time Ohio has used midazolam and the first time it has used it as part of a three-drug protocol. Rocuronium bromide has never been used in an Ohio execution, but the state has used pancuronium bromide from the same family.
Midazolam has grabbed most of the legal attention in multiple states. The sedative has been used for anesthesia, but usually in conjunction with another drug, as well as to treat anxiety, seizures, and insomnia.
Death penalty opponents have argued that, unlike the stronger pentobarbital and sodium thiopental, it cannot be counted on to induce deep enough sleep to prevent the condemned from experiencing excruciating pain from the next two drugs.
“There is mounting evidence that the three-drug protocol Ohio seeks to use is unconstitutionally painful…,” reads the request for a stay filed by Phillips and two other death row inmates before the U.S. Supreme Court.
“Two states have formally abandoned midazolam,” it reads. “And two district courts [in Ohio and Arizona] that have heard the testimony have found plaintiffs likely to succeed in challenging midazolam’s constitutional adequacy.”
In June, an 8-6 majority of the Cincinnati-based U.S. 6th Circuit Court of Appeals lifted a preliminary injunction against the state that had been put in place by U.S. District Court Magistrate Judge Michael Merz in Dayton early this year.
The full appellate bench found that the U.S. Constitution does not guarantee a “pain-free execution.” Writing for the majority, Judge Raymond Kethledge said the death row plaintiffs, including Phillips, failed to meet the legal burden of demonstrating Ohio’s new protocol was “sure or very likely to cause serious pain.”
“Ronald Phillips was convicted for the 1993 rape and murder of his girlfriend’s 3-year-old daughter, whom he beat so badly that her heart collapsed after days of intense pain and vomiting,” Attorney General Mike DeWine’s office noted in its filing urging the Supreme Court not to stop the execution.
The Ohio Parole Board, in recommending that Phillips not receive clemency, called his deed “among the worst of the worst capital crimes.”
In the wake of a 2015 U.S. Supreme Court decision that came to a similar conclusion in an Oklahoma case, use of midazolam has become more common in executions nationally.
“The [U.S. Supreme] Court has turned down review of all of the systemic challenges to the use of midazolam since [its 2015 ruling],” said Robert Dunham, executive director of the Washington-based Death Penalty Information Center. “They’ve allowed what lower courts have said to stand.
“There’s never been an actual finding that it is constitutional to use midazolam in executions, but they have been finding that individual defendants have not proven that it’s unconstitutional,” he said. “Because of that, the challenges will continue.”
In 2016, two of the 20 executions carried out in the country involved three-drug protocols with midazolam as the first.
The rest involved massive single-drug overdoses of pentobarbital.
But of 14 executions so far this year, eight involved three-drug processes that included midazolam — in Arkansas, Virginia, and Alabama.
So where are the other states finding pentobarbital?
“That’s a really good question,” Mr. Dunham said. “There was a finding by the district court in the Ohio case that pentobarbital was available.”
He said it appears the states are getting it through compounding pharmacies that replicate it from scratch.
Barring Supreme Court intervention, Phillips will become the 53rd inmate executed in Ohio since it resumed carrying out the death penalty in 1999 — all by lethal injection. Three more executions are scheduled this fall and there are 27 inmates slated for execution over four years.
Contact Jim Provance at jprovance@theblade.com or 614-221-0496.
First Published July 24, 2017, 4:22 a.m.
