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Divided Sixth Circuit Lifts Ban Against Executions in Ohio

The en banc Sixth Circuit ruled 8-6 Wednesday to overturn an injunction against Ohio’s lethal-injection protocol, clearing the way for the state to move forward with scheduled executions.

(CN) – The en banc Sixth Circuit ruled 8-6 Wednesday to overturn an injunction against Ohio’s lethal-injection protocol, clearing the way for the state to move forward with scheduled executions.

In January, U.S. Magistrate Judge Michael Merz blocked Ohio’s plans to execute three death-row inmates, finding that the state’s current three-drug injection protocol violates the Eighth Amendment.

The state’s lethal injection procedure has been mired in litigation for years, following the 24-minute execution of Dennis McGuire in January 2014, during which McGuire choked and gasped for air before his death.

The death-row inmates whose executions were stayed argued that midazolam, the sedative used by the state, fails to render an individual completely unconscious and insensate to pain.

Judge Merz ruled that until the state can get access to a supply of pentobarbital, a sedative proven to work in executions as the first drug in the three-drug protocol, Ohio cannot guarantee death-row inmates a painless death. The ruling caused Gov. John Kasich to postpone eight scheduled executions.

A three-judge panel of the Sixth Circuit upheld Merz’s injunction in April.

However, the decision to uphold the injunction was vacated soon after when the Sixth Circuit decided to rehear the case en banc.

During oral arguments two weeks ago, Eric Murphy, attorney for the state, argued that the district court misapplied the U.S. Supreme Court decision’s in Glossip and that, at most, there is “uncertainty” as to whether the use of the sedative midazolam renders inmates insensate to pain.

Glossip – a 5-4 decision in the nation’s highest court – found that Oklahoma’s lethal injection procedure, and specifically the use of midazolam, does not violate the Eighth Amendment’s ban on cruel and unusual punishment.

Murphy said the uncertainty over the drug does not meet the standard required to prevent the state from executing its inmates under the current protocol.

Attorney Mark Haddad argued on behalf of the death-row inmates, and pleaded with the full Sixth Circuit to affirm the lower court’s injunction and allow his clients to develop the record.

He told the court that the decision in Glossip – which he characterized as the Supreme Court upholding one federal judge’s decision – did not “cut off inquiry” into whether the use of midazolam is inhumane.

On Wednesday, a highly divided full Sixth Circuit ruled in favor of Ohio and overturned Judge Merz’s injunction in an 8-6 decision.

Writing for the majority, U.S. Circuit Judge Raymond Kethledge said the death-row inmates have not shown a likelihood of success on their legal claim.

“In a sense the claim is unprecedented: the Supreme Court ‘has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment,’” Kethledge wrote. “The State’s chosen procedure here is the same procedure (so far as the combination of drugs is concerned) that the Supreme Court upheld in Glossip. Every other court of appeals to consider that procedure has likewise upheld it, including most recently the Eighth Circuit, which rejected a nearly identical challenge in a procedural posture identical to the one here.” (Parentheses in original.)

The majority’s opinion further states that some risk of pain is inherent in any method of execution.

“Different people may have different moral intuitions as to whether—taking into account all the relevant circumstances—the potential risk of pain here is acceptable. But the relevant legal standard, as it comes to us, requires the plaintiffs to show that Ohio’s protocol is ‘sure or very likely’ to cause serious pain,” Kethledge wrote. “The district court did not meaningfully apply that standard here. And the plaintiffs have fallen well short of meeting it.”

Six members of the Cincinnati-based appeals court dissented, led by U.S. Circuit Judge Karen Nelson Moore.

Moore wrote that the death-row inmates challenging Ohio’s execution protocol should not be executed before a trial on the protocol’s constitutionality.

“The majority has decided to forego a trial on the merits of plaintiffs’ constitutional claims and to allow the State of Ohio to execute plaintiffs without such a trial,” she wrote. “More egregiously, the majority has decided to forego a trial even though the district court, which has the better view of the evidence, determined that plaintiffs should have a trial because they are likely to succeed on the merits of their constitutional claim.”

Allen Bohnert, one of the attorneys representing the death-row prisoners, said in a statement that midazolam is simply not suitable for lethal injections.

“Today’s 8 to 6 narrowly divided ruling doesn’t change that fact. Indeed, this close split between the appellate court judges further demonstrates the underlying reasonableness of the district court’s order blocking the executions until a trial could be held,” Bohnert said. “No one in Ohio wants to see another botched execution, which is why we will seek review in the U.S. Supreme Court.”

Ohio is scheduled to execute convicted murderer Ronald Phillips on July 26. The state has three other executions scheduled for later this year.

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