Ohio Execution Protocol Headed for En Banc Review

CINCINNATI (CN) – Ohio’s three-drug execution protocol, which includes the use of a controversial sedative, will be argued before the entire Sixth Circuit, after a successful petition by the state.

A panel of Sixth Circuit judges had previously upheld a lower court injunction that stayed the execution of three death-row inmates.

The injunction, granted in January by U.S. Magistrate Judge Michael Merz, allowed for further litigation regarding the efficacy of the sedative midazolam, the first of three drugs used in Ohio’s lethal injection procedure.

The decision to uphold the injunction will be vacated, however, and the entire court will hear arguments on June 14.

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 have been stayed argued that midazolam, the sedative used by the state, fails to render an individual completely unconscious and insensate to pain.

After a five-day hearing that included exhaustive testimony from numerous experts, Judge Merz granted the injunction and held that the inmates were likely to prevail on claims that the use of midazolam created a “substantial risk of serious harm.”

Ohio argued that Merz failed to make specific findings of fact in his decision, and merely recited expert testimony.

In her April 6 opinion upholding the injunction, Sixth Circuit Judge Karen Nelson Moore wrote that “while we recognize the district court could have been more specific, we are also mindful that the State of Ohio has pushed for this litigation to move as quickly as possible.”

She continued: “Its effort to proceed expeditiously likely explains why the district court’s 119-page opinion, which it issued about two weeks after the five-day hearing, does not painstakingly lay out each finding of fact at the level of detail all would prefer. Most importantly, we reiterate that any imperfections in the district court opinion do not amount to a total failure to find facts.”

The state cited the U.S. Supreme Court’s decision in Glossip v. Gross, which held that Oklahoma’s execution protocol – which also includes the use of midazolam – did not violate prisoners’ Eighth Amendment rights, but Judge Moore was quick to point out that the Glossip decision did not make a blanket rule protecting the use of midazolam in executions.

“The distinction between establishing a per se rule that use of midazolam is always unconstitutional and what the Supreme Court actually did – which is determine that the Oklahoma district court did not clearly err by finding that a particular group of petitioners failed to meet their burden at the preliminary-injunction stage to show that they were likely to succeed on their claim that use of midazolam was unconstitutional – is crucial,” she wrote.

Moore also cited post-Glossip evidence available to Judge Merz, including eyewitness testimony from two executions that “provid[ed] the district court with information about additional midazolam-involved executions … [and] also shed new light on earlier midazolam-involved executions.”

Sixth Circuit Judge Raymond M. Kethledge wrote a scathing dissent to the majority opinion, and scolded the district court for its failure to “offer much reasoning in support of its decision.”

Although he admitted that time constraints played a part, Judge Kethledge said “the district court offered virtually no reason for its decision to adopt the conclusions of the plaintiffs’ experts wholesale.”

“Fairly or not, the applicable legal standard requires the plaintiffs to prove their allegations to a high level of certainty; yet the district court based its decision, at best, on uncertainty,” Kethledge concluded.

The Sixth Circuit decided Wednesday to rehear the case en banc.

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