CINCINNATI (CN) – The en banc Sixth Circuit heard arguments Wednesday over Ohio’s three-drug lethal injection procedure, as over two dozen death-row inmates await word on the status of their executions.
U.S. District Court Judge Michael Merz ruled in January that the state’s current three-drug cocktail creates a “substantial risk of serious harm” during the execution process and issued a stay until a credible substitute can be obtained.
Eric Murphy, attorney for the state, argued Wednesday 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.
Judge Jane Branstetter Stranch lamented the inability of scientists to test the efficacy of midazolam, and likened the current protocol to “putting people to death and see[ing] what happens.”
“Do we have to keep putting people to death until a certain number react horribly [to determine midazolam is not safe]?” she asked.
Murphy countered by claiming that the inmates’ argument is based on “a few executions with movement and coughing.”
The attorney cited expert testimony from a state witness who said those types of reactions are not necessarily indicative of a conscious individual.
Judge Stranch prodded further, and said some execution witnesses with prior experience claimed they had “never seen” the types of responses found in inmates executed with the three-drug cocktail at issue.
“Does that not fit into your consideration?” she asked.
Murphy responded that “untrained eyewitnesses” are unreliable in determining whether inmates are feeling pain during an execution.
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.
Haddad also cited the availability of two alternative methods of execution, but was met with resistance by several of the judges.
The attorney claimed Ohio could use pentobarbital – a method previously used by the state – or a two-drug procedure that would eliminate the use of the paralytic currently administered after midazolam.
Judge Jeffrey Sutton told Haddad the paralytic “is used for the dignity of the inmate” during the execution, and Haddad responded that his clients were willing to “forego that dignity.”
Judge Raymond Kethledge said he found “considerable irony” in the two-drug procedure suggested by Haddad because it seemed to suggest that midazolam would be effective at eliminating pain from the final drug.
During his rebuttal, Murphy denied the availability of pentobarbital, and said it was “common sense [that] if the state of Ohio had it, we would switch back.”
He also expounded on the two-drug alternative, and said the only court to consider it was the Eastern District Court of Arkansas, where it was rejected because it was considered “a concession that midazolam worked.”
The state may be close to finding a way around using midazolam, however, as a recently unsealed deposition revealed it has located a provider for pentobarbital, the barbiturate previously used in a single-drug lethal injection.
The deposition of Ohio prison system attorney Stephen Gray – unsealed on May 24 – revealed the state may be able to source the drug from a compounding pharmacist.
To do so, Ohio would have to import the ingredients from overseas and provide them to the pharmacist, who would then create small batches of the lethal drug.
The deposition was not mentioned in Wednesday’s oral arguments.
No timetable has been set for the Sixth Circuit’s en banc decision.
Ohio’s lethal injection procedure came under national scrutiny following the botched execution of Dennis McGuire in January 2014. The state 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.