Ohio Supreme Court Rules Against Death-Row Prisoners in Administrative Challenge to Lethal-Injection Process

The Ohio Supreme Court has upheld the state’s exe­cu­tion process against a pro­ce­dur­al chal­lenge by two of the state’s death-row pris­on­ers that sought to inval­i­date Ohio’s lethal-injec­tion pro­to­col. A unan­i­mous Ohio Supreme Court ruled on October 19, 2021 that the Ohio Department of Rehabilitation and Correction (ODRC) did not vio­late state law when it adopt­ed a lethal-injec­tion pro­to­col with­out going through the state’s for­mal rulemaking process. 

In their suit, death-row pris­on­ers Cleveland Jackson and James D. O’Neal had argued that ODRC’s fail­ure to com­ply with Ohio’s for­mal pro­ce­dures for admin­is­tra­tive rule­mak­ing, includ­ing pro­vi­sions for pub­lic notice and com­ment and fil­ing the pro­to­col with an appro­pri­ate state enti­ty, inval­i­dat­ed the exe­cu­tion pro­to­col. Without a valid pro­to­col, Ohio would have had no legal means to car­ry out executions.

Ohio admin­is­tra­tive law man­dates that gov­ern­ment agen­cies com­ply with spe­cif­ic pro­ce­dur­al require­ments when­ev­er they adopt inter­nal man­age­ment rules or rules ​“hav­ing a uni­form and gen­er­al appli­ca­tion.” The Ohio Supreme Court held that the pro­to­col was more an ​“instruc­tion man­u­al” that explains ​“how ODRC per­son­nel are to admin­is­ter a lethal injec­tion to a con­demned inmate, from start to fin­ish” than a rule of uni­form or gen­er­al appli­ca­tion. It also held that because exe­cu­tions are ​“per­formed on aver­age few­er than three times a year,” the pro­to­col did not qual­i­fy as an ​“inter­nal-man­age­ment rule” that gov­erned the day-to-day oper­a­tions of ODRC.

Ohio last car­ried out an exe­cu­tion in July 2018. On February 19, 2019, Governor Mike DeWine stat­ed that the state would not car­ry out any exe­cu­tions until it devised a new exe­cu­tion pro­to­col that was approved by the courts. While he did not for­mal­ly halt the exe­cu­tions sched­uled in the state, he has grant­ed reprieves ​“due to ongo­ing prob­lems involv­ing the will­ing­ness of phar­ma­ceu­ti­cal sup­pli­ers to pro­vide drugs to the Ohio Department of Rehabilitation and Correction (DRC), pur­suant to DRC pro­to­col, with­out endan­ger­ing other Ohioans.”