The day TCP’s January 25th — cover story “Back in Business: Ohio Prepares to Execute its First Inmate Since 2014”— dropped, a U.S. District Court issued an order staying three executions scheduled for 2017.
The court order immediately stopped the State’s planned February 12 execution of Ohioans, Ronald Phillips, Raymond Tibbetts and Gary Otte after Phillips and the others contested Ohio’s proposed three-drug lethal injection protocol.
According to Magistrate Judge Michael R. Merz’ in a 119-page Decision and Order:
“The Court concludes that use of midazolam as the first drug in Ohio’s present three-drug protocol will create a ‘substantial risk of serious harm’ or an ‘objectively intolerable risk of harm’….” (pg. 105)
According to the Death Penalty Information Center (DPIC), Ohio used midazolam and hydromorphone in the botched 2014 execution of Dennis McGuire. In 2016 and prior, according the District Court’s opinion, the State of Ohio planned on using the two drugs pentobarbital and thiopental sodium. However, for 2017, Ohio changed its plans, and adopted the three-drug protocol consisting of midazolam, a sedative, rocuronium bromide, which causes paralysis, and potassium chloride, which stops the heart.
The Magistrate’s Order references a 2009 case where the State of Ohio took the position that pancuronium bromide and potassium chloride would no longer be used in a lethal injection protocol. The court noted that a party cannot adopt a position inconsistent with a position it took in an earlier case, leading to the Court’s decision to stop the use of the planned three drug protocol.
The State of Ohio is appealing the decision, though the Magistrate’s Order states that it will end the stay as soon as a decision pending in a 6th District Federal Appeals case, Fears V. Kasich, is announced.
There have been a significant number of legal challenges to lethal injection protocols. TheU.S. Supreme Court weighed in on the matter in the 2008 Kentucky case Baze v. Rees. The Supreme Court found that a convict must present that a drug combination would cause “needless suffering” and thus violate the constitution’s 8th amendment prohibition on cruel and unusual punishments.