COLUMBUS, Ohio — Ohio’s new lethal injection system is akin to burning inmates at the stake or burying them alive, say federal defense lawyers rushing to stop the state’s first execution in three years.
Ohio’s three-drug method, announced Oct. 3, is worse than a similar procedure used years ago, and multiple problems remain with the way the state prepares and carries out executions, federal public defenders said in a Wednesday court filing.
The filing attacks the first drug in that process — midazolam, meant to sedate inmates — as unlikely to relieve an inmate’s pain. The drug was used in problematic executions in Arizona and Ohio in 2014. But the U.S. Supreme Court last year upheld the use of midazolam in executions in a case out of Oklahoma.
According to the filing, because midazolam is not a barbiturate and cannot relieve pain, inmates are likely to experience “severe physical pain,” mental suffering and anguish,
As a result, “such an execution would be inhuman and barbarous, akin in its level of pain and suffering to being buried alive, burning at the stake, and other primitive methods long since abandoned by civilized society,” the filing said.
Executions have been on hold in Ohio since January 2014, when death row inmate Dennis McGuire gasped and snorted during the 26 minutes it took him to die. It was the longest execution since Ohio resumed putting inmates to death in 1999.
The state used a 2-drug method with McGuire, beginning with midazolam, but then discontinued it. Afterward, Ohio struggled for years to find new supplies of drugs, which have been placed off limits for executions by drug makers.
Now the prisons agency says it will use midazolam; rocuronium bromide, which paralyzes the inmate; and potassium chloride, which stops the heart.
On Jan. 12, Ohio is scheduled to execute Ronald Phillips for the rape and murder of his girlfriend’s 3-year-old daughter in Akron in 1993. The state also plans to carry out executions on Feb. 15 and March 15.
Huffman’s bill
Former Ohio Rep. and Senate elect Matt Huffman had introduced a bill in 2014 to shield the identities of the manufacturers of drugs used in lethal injections, saying at the time that “Ohio and other states have exhausted their options for purchasing chemicals used in lethal injections.”
“When we dealt with the bill at the end of my term in 2014, there were questions about the combination of drugs used prior to that,” Huffman told The Lima News. “They wanted to be able to go out and find something where it was not a painful death, but in order to get companies to research that and sell it, no one would do it if they would be publicly excoriated for it.”
Huffman could not comment on the potential effectiveness of any new combination of drugs, saying it was outside his sphere of knowledge.
“I’ll say the same thing I said at the time, which is that if we’re going to have the death penalty in Ohio, we need to have a method where it can be done in a humane way and in a way where it will not be constantly challenged and delayed for a variety of reasons. I can certainly understand the argument of ‘cruel and unusual,’ since it’s in the Constitution, but to use the court system in any way possible simply to stop it is not the purpose of the legal system.”
Hold up
Federal defense lawyers say the new procedures are unconstitutional and executions in Ohio should be put on hold.
The state will respond with its own filing, said Dan Tierney, a spokesman for Ohio Attorney General Mike DeWine.
In the Supreme Court ruling last year, justices heard arguments about Oklahoma’s proposal to use a massive dose of midazolam — 500 milligrams — the same amount Ohio would use.
An expert for Oklahoma presented persuasive testimony that such a dose virtually ensures inmates would not feel pain from the second and third drugs, wrote Justice Samuel Alito.
“Second, the fact that a low dose of midazolam is not the best drug for maintaining unconsciousness during surgery says little about whether a 500-milligram dose of midazolam is constitutionally adequate for purposes of conducting an execution,” Alito added.
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