Federal Magistrate Judge Rules Ohio Lethal Injection Protocol Unconstitutional

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.