COLUMBUS — The Ohio Supreme Court on Tuesday agreed to hear whether the state’s execution protocol is invalid because it didn’t go through the proper rule-making procedures.
The court’s decision sets up another potential complication for Ohio’s death penalty, which has been under an effective moratorium since 2018 as state officials have struggled to find execution drugs.
By a 4-3 vote, the Supreme Court accepted two appeals filed respectively by the two Ohioans who are next on the state’s execution schedule: Lima native Cleveland Jackson and Cincinnati’s James O’Neal.
The appeals claim Ohio’s three-drug lethal-injection protocol is a rule and, under the law, all state-level rules must be first filed with the state legislature’s Joint Committee on Agency Rule Review, as well as either the secretary of state or with the director of the Legislative Service Commission.
Ohio’s execution protocol is invalid because it wasn’t filed with any of those bodies, attorneys for O’Neal and Jackson argue.
Jackson was convicted of murdering 17-year-old Leneshia Williams and 3-year-old Jayla Grant in Lima during a 2002 apartment robbery. His execution date, which has been rescheduled six times, is currently set for June 15, 2023.
O’Neal, a Cincinnati man convicted of shooting his wife to death in 1993, is set to be put to death on Feb. 18, 2021.
Two lower courts previously sided against O’Neal and Jackson. The Tenth District Court of Appeals ruled that Ohio’s execution protocol isn’t a “rule” but rather “an order respecting the duties of employees.” Rules, the appeals court held, govern “day-to-day procedures or operations,” but executions do not occur on a daily basis.
In each of the two cases, Justices Michael Donnelly, Judith French, Sharon Kennedy, and Melody Stewart voted to accept the appeals. Donnelly and Stewart are the two Democrats on the court.
Chief Justice Maureen O’Connor, as well as Justices Pat Fischer and Pat DeWine, dissented.
Since taking office last year, Gov. Mike DeWine has frozen Ohio’s death penalty for a different reason: the state’s continuing problems with finding a pharmaceutical company willing to sell drugs for use in executions.
The governor has repeatedly expressed his concern that if companies find that Ohio used its drugs to put people to death, they will refuse to sell any of its drugs (not just the ones used in executions) to the state. That would endanger the ability of thousands of Ohioans - such as Medicaid recipients, state troopers, and prison inmates - to get drugs through state programs.
Any new cocktail of lethal-injection drugs must also be deemed by the courts not to be unconstitutionally “cruel and unusual” punishment.