After receiv­ing evi­dence dur­ing a five-day hear­ing, U.S. Magistrate Judge Michael R. Merz ruled on January 26 that Ohio’s lethal injec­tion process will cre­ate a sub­stan­tial and objec­tive­ly intol­er­a­ble risk of seri­ous harm in vio­la­tion of the Eighth Amendment. Based on that rul­ing, the court issued a pre­lim­i­nary injunc­tion stay­ing the exe­cu­tions of Ronald Phillips, Raymond Tibbetts, and Gary Otte. Ohio has not con­duct­ed an exe­cu­tion since January 2014, when it used a com­bi­na­tion of the drugs mida­zo­lam and hydro­mor­phone in the 26-minute long botched exe­cu­tion of Dennis McGuire. In January 2015, Ohio changed its pro­to­col and removed the con­tro­ver­sial drug mida­zo­lam, only to announce in October 2016 that it had changed course and would use mida­zo­lam in upcom­ing exe­cu­tions as part of a three-drug pro­to­col. Ohio’s pro­posed pro­to­col con­sist­ed of: mida­zo­lam, a seda­tive the state claimed would anes­thetize the pris­on­er; then a drug that caus­es com­plete mus­cle paral­y­sis and con­se­quent­ly suf­fo­ca­tion; fol­lowed by potas­si­um chlo­ride to ulti­mate­ly stop the heart. The sec­ond and third drugs will cause excrui­tat­ing pain and suf­fer­ing if giv­en to a per­son who is not prop­er­ly anes­thetized. Numerous med­ical experts have assert­ed that mida­zo­lam does not anes­thetize a per­son suf­fi­cient­ly to pre­vent expe­ri­enc­ing intense pain from the oth­er drugs, but a num­ber of states have nev­er­the­less con­tin­ued to use the drug in exe­cu­tions. In addi­tion to Ohio, Arizona, Oklahoma, and Alabama all have con­duct­ed vis­i­bly prob­lem­at­ic exe­cu­tions with mida­zo­lam. Florida, which has car­ried out more exe­cu­tions with mida­zo­lam than any oth­er state, recent­ly changed its pro­to­col to aban­don use of the drug. Judge Merz cred­it­ed the tes­ti­mo­ny of sci­en­tif­ic experts, find­ing that ​“mida­zo­lam does not have the same phar­ma­co­log­ic effect on per­sons being exe­cut­ed as the bar­bi­tu­rates thiopen­tal sodi­um and pen­to­bar­bi­tal.” The mag­is­trate judge reject­ed Ohio’s argu­ment that mida­zo­lam would cause the pris­on­er to for­get any pain he might expe­ri­ence dur­ing the exe­cu­tion, writ­ing, ​“That does not mean the pain was not inflict­ed and the Supreme Court has yet to tell us that inflict­ed pain that is not remem­bered does not count as severe pain for Eighth Amendment pur­pos­es.” Under the doc­trine of ​“judi­cial estop­pel,” the court also blocked the state from using the pro­posed sec­ond and third drugs because it had relied on aban­don­ing their use as grounds for win­ning a pri­or law­suit in 2009. The court said apply­ing the estop­pel rule was nec­es­sary to ​“pre­vent[] a par­ty from abus­ing the judi­cial process through cynical gamesmanship.” 

(A. Welsh-Huggins, ​“Federal Judge Rejects Ohio’s New Lethal Injection Process,” Associated Press, January 26, 2017.) See Lethal Injection. Read the opinion.

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