(CN) – Ohio must halt its plans to execute three death-row inmates because its current three-drug injection protocol violates the Eighth Amendment, a federal judge ruled Thursday.
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, U.S. Magistrate Judge Michael Merz ruled Thursday.
Ohio’s lethal injection procedure came under national scrutiny following the botched execution of Dennis McGuire in January 2014.
As U.S. Supreme Court Justice Samuel Alito noted in the 2015 decision in Glossip v. Gross upholding Oklahoma’s execution method, anti-death-penalty lobbying efforts have been widely successful in pressuring drug companies to stop selling the drugs used in the lethal injection process to states for execution purposes.
As a result, the drug cocktail injected into McGuire’s veins had never been used before.
Ohio ran out of pentobarbital, and instead used a mixture of midazolam and hydromorphone to sedate McGuire, before administering the next two execution drugs.
However, McGuire was not rendered unconscious by the midazolam, and the protocol left him choking and gasping for air for 25 minutes before he died.
Ohio has not carried out an execution since killing McGuire.
In an effort to improve its access to execution drugs, state lawmakers passed HB 663 in December 2014, making the identity of individuals and companies who participate in the lethal injection of death-row inmates confidential. The Sixth Circuit upheld the law in November, but the state still has not acquired a supply of pentobarbital.
Alabama’s execution of Ronald Smith last month also used midazolam, with similar results. Observers said that Smith was coughing, clenching and unclenching his fists, and trying to mouth words long after being injected with the drug, raising doubts as to whether he was conscious when injected with the paralytic drug and potassium chloride.
Nevertheless, Ohio announced in October 2016 that it intends to proceed with the executions of Ronald Phillips, Raymond Tibbetts and Gary Otte in the first quarter of this year.
The three men filed for a stay of execution in federal court, claiming Ohio’s planned lethal drug cocktail is likely to condemn them to an unnecessarily painful death, in violation of the Eighth Amendment’s prohibition on cruel and unusual punishment.
Their expert, Dr. Craig Stevens, testified that patients who were administered a paralytic while not fully sedated have reported severe pain and compared it to a slow suffocation, like being buried alive.
In a 119-page opinion that exhaustively details experts’ opinions on the effects of midazolam, Judge Merz concluded that “the use of midazolam as the first drug in Ohio’s present three-drug protocol will create a ‘substantial risk of serious harm’” to the prisoners.
This harm is significant enough to warrant an injunction because the inmates have identified a known and available alternative method of execution that entails a lower risk of pain, Merz said.
Ohio may obtain the active pharmaceutical ingredient of pentobarbital and have it made into an injectable form by a pharmacy, according to the judgment. In fact, the state has already applied for an import license from the Drug Enforcement Administration to do just that, and the application remains pending.
“The Supreme Court reminds us in Glossip that because capital punishment is not unconstitutional, there must be a constitutional way to accomplish it,” Merz said. “But that does not imply that an identified alternative to a problematic method must be available immediately.”
Since all parties agree that compounded pentobarbital would resolve the plaintiffs’ constitutional complaints about the state’s execution method, the judge said that postponing the executions to ensure an inmate is not executed unconstitutionally is in the best interest of justice.