A divid­ed U.S. Court of Appeals for the Sixth Circuit on June 28 reversed the deci­sion of a fed­er­al dis­trict court that had stayed exe­cu­tions in Ohio. In an 8 – 6 en banc deci­sion, the court vot­ed to allow Ohio to pro­ceed with exe­cu­tions using a pro­posed com­bi­na­tion of the con­tro­ver­sial seda­tive mida­zo­lam, the par­a­lyt­ic drug pan­curo­ni­um bro­mide, and the heart-stop­ping drug potas­si­um chlo­ride. Midazolam has been impli­cat­ed in botched exe­cu­tions in Alabama, Arizona, Ohio, and Oklahoma and flawed exe­cu­tions in Arkansas. After a five-day evi­den­tiary hear­ing in ear­ly January 2017, the District Court issued a pre­lim­i­nary injunc­tion that stayed the exe­cu­tions of Ohio death-row pris­on­ers Ronald Phillips, Raymond Tibbetts, and Gary Otte. At that time, it found ​“that admin­is­tra­tion of a par­a­lyt­ic drug and potas­si­um chlo­ride will cause a per­son severe pain” that would not be amer­lio­rat­ed by using mida­zo­lam, that the pro­to­col itself cre­at­ed a ​“sub­stan­tial” and ​“objec­tive­ly intol­er­a­ble” risk of seri­ous harm, and that a com­pound­ed ver­sion of the drug pen­to­bar­bi­tal was avail­able as an alter­na­tive method of exe­cu­tion. The State appealed that deci­sion to the Sixth Circuit, and in April, a three-judge pan­el affirmed the low­er court’s deci­sion. The State then appealed that deci­sion to the full court (a pro­ce­dure called en banc review). The major­i­ty agreed that the pris­on­ers ​“have shown some risk that Ohio’s exe­cu­tion pro­to­col may cause some degree of pain,” but said ​“some risk of pain ​‘is inher­ent in any method of exe­cu­tion — no mat­ter how humane’” and ​“the Constitution does not guar­an­tee ​‘a pain-free exe­cu­tion.’” Allen Bohnert, one of the lawyers for the pris­on­ers, said in a state­ment: ​“Multiple exe­cu­tions have demon­strat­ed that mida­zo­lam is not a suit­able drug for lethal injec­tion, and espe­cial­ly when used with the two excru­ci­at­ing­ly painful drugs Ohio aban­doned in 2009. … Ohio should not take the risk of con­tin­ued botched exe­cu­tions by going back to using these dan­ger­ous, unsuit­able drugs.” He said the pris­on­ers will seek review of the deci­sion in the U.S. Supreme Court because “[n]o one in Ohio wants to see anoth­er botched exe­cu­tion.” The deci­sion per­mits Ohio to move for­ward with 30 exe­cu­tions that are sched­uled between this month and 2021, while the District Court con­ducts a full tri­al on the lethal-injec­tion chal­lenge brought by death-row pris­on­ers. Ohio has sched­uled the exe­cu­tion of Ronald Phillips for July 26.

(K. Lessmiller, Divided Sixth Circuit Lifts Ban Against Executions in Ohio, Courthouse News Service, June 28, 2017; E. Heisig, ​“Ohio can use three-drug com­bi­na­tion to resume exe­cut­ing those on death row, appeals court says,” Cleveland Plain Dealer, June 28, 2017; A. Johnson, ​“US Supreme Court will be asked to halt Ohio exe­cu­tions,” The Columbus Dispatch, June 28, 2017; News Release, ​“Attorney Statement on Ohio Lethal Injection Decision,” June 28, 2017 ) Read the Sixth Circuit’s opin­ion in In re: Ohio Execution Protocol, No. 17 – 3076 here.

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