Ohio Gov. Mike DeWine appeared to take lethal injection for executions off the table several weeks ago. But in subsequent court filings and statements by his spokesman, it appears to remain an option.
On July 31, DeWine seemed to reiterate that he wouldn’t use an execution method that a federal judge said amounts to cruel and unusual punishment, and said legislators were going to have to come up with an alternative to carry out the death penalty in Ohio.
But on Aug. 9, lawyers for the state were again telling the 6th Circuit Court of Appeals in Cincinnati that the state might use the protocol if the court ruled that it was constitutional.
The apparent discrepancy has some scratching their heads after U.S. Magistrate Judge Michael Merz last month flagged a similar contradiction and ordered that DeWine be shown that his lawyers were in court, taking a position seemingly at odds with the one the state’s chief executive had staked out publicly.
“I did not intend and would not have an execution carried out with that (lethal injection) protocol in the state of Ohio,” DeWine is quoted in court papers as saying on July 31. The statement came after a Dispatch story a day earlier that said the governor was open to using the protocol if it were OK’d by the courts.
DeWine early this year postponed four executions after Merz likened Ohio’s execution method to “waterboarding” and said it would be unconstitutional if not for a 2015 U.S. Supreme Court decision requiring that those who object to the proposed method of their execution propose another that is better and available.
In the same July 31 press conference in which DeWine seemed to disavow the state’s death protocol, he said corrections officials were finding it almost impossible to formulate a new intravenous execution method. The Dispatch in April obtained documents showing that the state was using drugs whose manufacturers and distributors didn’t know were being used for executions. DeWine said in the press conference that some had threatened to stop supplying Ohio with drugs for any purpose if they suspected that some would end up in the death chamber.
The governor said he wanted to meet with legislative leaders to discuss execution methods that don’t involve intravenous injection. But nine days later, the state’s lawyers filed a brief with the 6th Circuit saying that convicted killer Warren Keith Henness “may be executed with the current protocol and the case is not moot.” The state’s lawyers were responding to a request by Henness’s attorneys that his appeal be stopped because DeWine had repudiated the death protocol in “unambiguous and clear terms, (so) Mr. Henness no longer faces execution under the protocol.”
Asked Thursday about the apparent contradiction, DeWine Press Secretary Dan Tierney said the governor’s position “has not changed.” He added, “Even if the court rules that Ohio’s current protocol is constitutional, there are other problems” the state has to deal with. For example, if Ohio uses drugs it already has, manufacturers and distributors such as Hikma and AmeriSource Bergen might stop supplying medicines for such purposes as state-operated veterans homes.
“Taken as a whole, this is a complex question without simple answers,” Tierney said.
Hannah Kubbins, spokeswoman for Ohioans to Stop Executions, praised DeWine for his thoughtful approach to the way Ohio executes people. But, she said, “Regardless of what the 6th Circuit rules, the facts and the science haven’t changed. The (current Ohio) protocol has been and will remain torture.”
Among the issues that experts testifying in Merz’s court have raised with Ohio’s method is that the first drug, Midazolam, doesn’t have the pain-killing properties that opioids do. And they say the drug’s acidity causes the lungs to fill with a bloody froth, which could create a downing sensation. Summarizing the experts’ testimony, Merz also wrote that if paralyzed inmates were sensate, the third, heart-stopping drug in the protocol would feel as if fire were being poured into his or her veins.
Tierney would not say whether DeWine was opposed to using Ohio’s current protocol simply on the grounds laid out in Merz’s decision.
However, DeWine told reporters at an Associated Press forum in Feburary, “Ohio is not going to execute someone under my watch when a federal judge has found it to be cruel and unusual punishment.”
Meanwhile, attorneys for the state noted that the 6th Circuit on Aug. 6 upheld Tennessee’s lethal injection protocol, which the Ohio attorneys called “materially indistinguishable from Ohio’s.”
In the decision, the panel of three appellate judges did write that in a separate 2018 ruling they had “concluded that neither of these methods (the Midazolam protocol or the electric chair) violate the Constitution.” However, the judges spent almost all of their analysis in the Aug. 6 ruling saying that the Tennessee death-row plaintiffs lost in state court and under the doctrine of res judicata, the court of appeals had to accept the state court decision. A request to put the matter before the full 6th Circuit was denied and the case has been appealed to the U.S. Supreme Court.
It’s unclear whether the testimony of what Judge Merz regarded as an unprecedented group of experts in his court in Dayton would do anything to change the minds of the appellate judges sitting in Cincinnati. But Judge Karen Nelson Moore wrote in a concurrence that she agreed that the Tennessee inmates exhausted their remedies in state court, so the federal courts couldn’t consider the case’s “troubling merits.”