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.


Marty Schladen, Appeals court says Ohio exe­cu­tion pro­to­col doesn’t cause uncon­sti­tu­tion­al pain, Columbus Dispatch, September 112019.

Read Judge Mertz’s opin­ion here and the opin­ion of the Sixth Circuit here.