Federal Appeals Court Says Suffocation Not ​‘Needless Suffering,’ Upholds Ohio Execution Protocol

Saying that ​“suf­fo­ca­tion does not qual­i­fy as ​‘severe pain and need­less suf­fer­ing,’” a fed­er­al appeals court in Ohio has ruled that the state’s three-drug exe­cu­tion pro­to­col does not vio­late the con­sti­tu­tion­al pro­hi­bi­tion against cru­el and unusual punishments.

On September 11, 2019, a pan­el of the Cincinnati-based United States Court of Appeals for the Sixth Circuit reject­ed an appeal by death-row pris­on­er Warren Henness (pic­tured), who had argued that the state’s exe­cu­tion plan was unnec­es­sar­i­ly tor­tur­ous. In doing so, the pan­el also reversed a fed­er­al dis­trict court’s find­ings—reached after an exten­sive evi­den­tiary hear­ing — that had likened Ohio’s three-drug lethal-injec­tion pro­to­col to a com­bi­na­tion of water­board­ing and chemical fire.

Ohio’s exe­cu­tion pro­to­col uses the seda­tive mida­zo­lam fol­lowed by the par­a­lyt­ic drug rocuro­ni­um bro­mide and potas­si­um chlo­ride to stop the heart. In a 148-page opin­ion issued on January 14, 2019, fed­er­al mag­is­trate Judge Michael Merz assessed the exten­sive med­ical evi­dence before the court and con­clud­ed that the state’s drug com­bi­na­tion ​“will almost cer­tain­ly sub­ject [Henness] to severe pain and needless suffering.” 

Judge Mertz found that mida­zo­lam — which is sup­posed to ren­der the exe­cut­ed pris­on­er insen­sate to the severe pain he or she would expe­ri­ence from the sec­ond and third drugs — ​“has no anal­gesic prop­er­ties [and] can­not pre­vent the pain inci­dent to the sec­ond and third drugs from reach­ing the brain of the con­demned inmate.” The par­a­lyt­ic drug, he found, would pro­duce a sen­sa­tion ​“essen­tial­ly the same as suf­fo­ca­tion” as the prisoner’s lungs shut down and he was unable to breath. Then the potas­si­um chlo­ride ​“would feel as though fire was being poured into [the prisoner’s] veins.” Based on the med­ical tes­ti­mo­ny, Judge Mertz also deter­mined that the high dose of mida­zo­lam used in the exe­cu­tion was itself ​“cer­tain or very like­ly to cause pul­monary ede­ma,” a build-up of flu­id in the lungs that would be ​“painful, both phys­i­cal­ly and emo­tion­al­ly, induc­ing a sense of drown­ing and the atten­dant pan­ic and ter­ror, much as would occur with the tor­ture tac­tic known as waterboarding.” 

Mertz wrote that this evi­dence, on its face, ​“should be enough to con­sti­tute cru­el and unusu­al pun­ish­ment.” However, the U.S. Supreme Court’s con­tro­ver­sial 5 – 4 rul­ing in the 2015 lethal-injec­tion case Glossip v. Gross also required Henness to prove that Ohio had an alter­na­tive method to exe­cute him that was ​“avail­able, fea­si­ble and can be read­i­ly imple­ment­ed.” Mertz then ruled that Henness had not proven that Ohio had an avail­able execution alternative. 

The Sixth Circuit affirmed the result, but dis­avowed Mertz’s factfind­ing on tor­ture. It wrote that ​“nei­ther pul­monary ede­ma nor the symp­toms asso­ci­at­ed with it qual­i­fy as the type of seri­ous pain pro­hib­it­ed by the Eighth Amendment.” Quoting the Supreme Court’s recent deci­sion in Bucklew v. Precythe , a Missouri lethal-injec­tion case, the court wrote that although ​“mida­zo­lam may cause Henness to suf­fo­cate[,] … the Eighth Amendment only pro­hibits forms of pun­ish­ment that seek to inten­si­fy an inmate’s death by ​‘superadd[ing]’ feel­ings of ​‘ter­ror, pain, or dis­grace.’” Comparing pul­monary ede­ma to a pris­on­er exe­cut­ed by hang­ing, the court said death by slow suf­fo­ca­tion ​“is not con­sti­tu­tion­al­ly prob­lem­at­ic. … [S]uffocation does not qual­i­fy as ​‘severe pain and needless suffering.’”

Without dis­cussing the med­ical evi­dence on the effects of the sec­ond and third drugs, the appeals court said that ​“the Eighth Amendment does not guar­an­tee a pris­on­er a pain­less death, so it is imma­te­r­i­al whether the inmate will expe­ri­ence some pain.… And the fact that mida­zo­lam may not pre­vent an inmate from expe­ri­enc­ing pain is irrel­e­vant to whether the pain the inmate might expe­ri­ence is uncon­sti­tu­tion­al.” The cir­cuit court then assert­ed that Henness had not met his bur­den of ​“show­ing that a per­son deeply sedat­ed by … mida­zo­lam is still ​‘sure or very like­ly’ to expe­ri­ence an uncon­sti­tu­tion­al­ly high lev­el of pain.”

Henness’ appeal lawyer, assis­tant Ohio fed­er­al defend­er David Stebbins, crit­i­cized the rul­ing in a state­ment released to the media. He wrote: ​“After an exten­sive evi­den­tiary hear­ing on the com­plex med­ical and sci­en­tif­ic issues with Ohio’s three-drug lethal injec­tion pro­to­col with the risky seda­tive Midazolam, the dis­trict court issued a near­ly 150-page deci­sion find­ing the pro­to­col caus­es pain and suf­fer­ing beyond what the U.S. Constitution per­mits. … Today’s brief opin­ion con­cludes that the dis­trict court was incor­rect, despite the court’s reliance on the exten­sive tes­ti­mo­ny of some of the nation’s lead­ing experts that mida­zo­lam can­not pre­vent pain, and indeed caus­es severe pain com­pa­ra­ble to ​‘a tor­ture tac­tic.’ The Sixth Circuit’s deci­sion does not reflect the known facts about how the three-drug pro­to­col acts upon the human body.”

Henness’ appeal was part of lit­i­ga­tion affect­ing all of Ohio’s death-row pris­on­ers. Stebbins said his office has not yet decid­ed whether to seek en banc review before the entire Sixth Circuit or to ask the U.S. Supreme Court to review the case.