In a guest col­umn for the Cleveland Plain Dealer, retired fed­er­al appeals court judge Nathaniel R. Jones (pic­tured) urged Ohio to ​“recon­sid­er its race to death” in sched­ul­ing exe­cu­tions while the con­sti­tu­tion­al­i­ty of the state’s lethal injec­tion process remains in ques­tion. Jones, who served on the United States Court of Appeals for the Sixth Circuit from 1979 to 2002, crit­i­cized the state’s pro­posed use of the drug mida­zo­lam in exe­cu­tions, describ­ing Ohio’s 2014 exe­cu­tion of Dennis McGuire using the drug, in which wit­ness­es said McGuire ​“gasped loud­ly for air and made snort­ing and chok­ing sounds for as long as 26 min­utes” before dying. In its after­math, Ohio tem­porar­i­ly halt­ed exe­cu­tions and announced that it would not use mida­zo­lam — which has now been impli­cat­ed in botched exe­cu­tions in four states — in the future. Jones wrote that, since the McGuire exe­cu­tion, ​“even more infor­ma­tion has emerged about how unsuit­able mida­zo­lam is for lethal injec­tion.” But despite its pri­or announce­ment and the addi­tion­al evi­dence con­cern­ing mida­zo­lam, Ohio in 2016 pro­posed a new three-drug pro­to­col that includ­ed mida­zo­lam as the first drug, and the state is defend­ing that pro­to­col in court. After a five-day hear­ing in which the court heard exten­sive expert tes­ti­mo­ny, U.S. Magistrate Judge Michael Merz held that Ohio had failed to prove that mida­zo­lam does not present a sub­stan­tial risk of harm and declared the state’s pro­posed exe­cu­tion pro­to­col uncon­sti­tu­tion­al. Despite the on-going lit­i­ga­tion, Ohio set new exe­cu­tion dates both before and after the hear­ing. ​“Ohio offi­cials must not risk anoth­er uncon­sti­tu­tion­al exe­cu­tion,” Jones wrote. ​“That can be done only by plac­ing exe­cu­tions on hold while courts take the time nec­es­sary to con­sid­er whether Ohio’s prob­lem­at­ic pro­to­col pass­es con­sti­tu­tion­al muster.” He called on Ohio offi­cials ​“to agree not to resume exe­cu­tions until the courts deter­mine a law­ful method.” On February 10, Ohio Governor John Kasich announced that he was resched­ul­ing eight exe­cu­tions as the state appealed the mag­is­trate judge’s rul­ing. The ear­li­est exe­cu­tion, which had pre­vi­ous­ly been sched­uled for February 15, was moved to May 10. 

(A. Welsh-Huggins, ​“OHIO GOVERNOR DELAYS 8 EXECUTIONS AS COURT FIGHT CONTINUES,” Associated Press, February 10, 2017; N. Jones, ​“Halt rush to resume Ohio exe­cu­tions before courts rule on death drug’s con­sti­tu­tion­al­i­ty: Nathaniel R. Jones (Opinion),” Cleveland Plain Dealer, February 10, 2017.) See Lethal Injection and New Voices.

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