Judge Rejects Last-Ditch Effort to Block Ohio Executions

(CN) – Rejecting Eighth Amendment challenges to the drug cocktail Ohio uses to give the death penalty, a federal judge moved the state one step closer Wednesday to resuming lethal injections.

The executions of Alva Campbell Jr., Gary Otte, Ronald Phillips and Raymond Tibbetts have been on hold since January, when U.S. Magistrate Judge Michael Merz found that the state’s three-drug injection protocol violated the Eighth Amendment.

Merz said 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.

But the Sixth Circuit lifted the ban two weeks ago in a 8-6 en banc ruling, clearing the way for the state to move forward with the executions.

Ohio is scheduled to execute convicted murderer Phillips on July 26.

Otte and Tibbetts had tried to block their executions by raising 49 claims under the Eighth Amendment, asserting that the state will be “experimenting” on them by using an untested, lethal drug cocktail.

Judge Merz rejected each challenge Wednesday.

“Our revulsion from the so-called medical ‘experiments’ conducted by the Nazis and indeed from the notorious syphilis experiments on African-American men in this country has led to strict controls of medical experimentation, including the requirement of informed consent,” the 60-page opinion states. “But that is not what defendants are engaged in, although they have appropriately considered the results of the use of particular drugs in planning future executions.”

Merz dismissed the prisoners’ other various claims related to the purported pain they will suffer during the execution, citing Sixth Circuit precedent that a prisoner has no property interest in a painless death.

Ohio’s lethal-injection procedure came under national scrutiny following the botched execution of Dennis McGuire in January 2014.

As noted by Justice Samuel Alito when the U.S. Supreme Court upheld Oklahoma’s execution protocol in the 2015 decision Glossip v. Gross, efforts to lobby against the death penalty 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.

McGuire was not rendered unconscious by the midazolam, however, 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.

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