The U.S. Court of Appeals for the Sixth Circuit has upheld a low­er fed­er­al court rul­ing block­ing the state of Ohio from pro­ceed­ing with plans to car­ry out exe­cu­tions with its new three-drug exe­cu­tion pro­to­col. The deci­sion affirmed a dis­trict court pre­lim­i­nary injunc­tion that barred the state from using the drug mida­zo­lam as part of a three-drug exe­cu­tion process, and barred the state from using ​“any lethal injec­tion method which employs either a par­a­lyt­ic agent…or potas­si­um chlo­ride.” Judge Karen Moore, writ­ing for the 2 – 1 major­i­ty, said, ​“We are bound by the dis­trict court’s fac­tu­al find­ing that ​‘use of mida­zo­lam as the first drug in a three-drug exe­cu­tion pro­to­col will cre­ate ​‘a sub­stan­tial risk of seri­ous harm.’” Midazolam, a seda­tive, has been linked to botched exe­cu­tions in Ohio, Oklahoma, Arizona, and Alabama. Three Ohio death-row pris­on­ers, Gary Otte, Ronald Phillips, and Raymond Tibbets, chal­lenged Ohio’s pro­posed pro­to­col, which would use mida­zo­lam, fol­lowed by a par­a­lyt­ic drug, fol­lowed by potas­si­um chlo­ride to stop the heart. In January, a U.S. Magistrate Judge con­duct­ed the most exten­sive evi­den­tiary hear­ing to date on the con­sti­tu­tion­al­i­ty of using mida­zo­lam in exe­cu­tions. After hear­ing five days of tes­ti­mo­ny fea­tur­ing expert med­ical wit­ness­es and eye­wit­ness accounts of pre­vi­ous mida­zo­lam exe­cu­tions, the court issued a pre­lim­i­nary injunc­tion against Ohio’s exe­cu­tion pro­to­col. The Sixth Circuit upheld the dis­trict court’s deci­sion, rul­ing that — giv­en the evi­dence pre­sent­ed at the hear­ing — the court’s find­ings of fact regard­ing the risks posed by mida­zo­lam were not clear­ly erro­neous. The appeals court also upheld the low­er court’s injunc­tion against the use of any par­a­lyt­ic drug or potas­si­um chlo­ride, agree­ing with the dis­trict court that Ohio was bound by its pre­vi­ous repeat­ed rep­re­sen­ta­tions that it would not use those drugs in future exe­cu­tions. In reliance on those rep­re­sen­ta­tions, the death-row plain­tiffs had dropped claims relat­ed to those drugs from the lit­i­ga­tion. The Sixth Circuit wrote, “[a]llowing the State to reverse course and use pan­curo­ni­um bro­mide and potas­si­um chlo­ride in exe­cu­tions not only would unfair­ly advan­tage the State, but also would under­mine the integri­ty of this lit­i­ga­tion.” In a short con­cur­ring opin­ion, Judge Jane Stranch com­ment­ed: ​“This dia­logue about the con­sti­tu­tion­al pro­hi­bi­tion on cru­el and unusu­al pun­ish­ment is close­ly inter­twined with our ongo­ing nation­al con­ver­sa­tion about the American crim­i­nal jus­tice sys­tem. Woven through both is dis­qui­et about issues such as pun­ish­ing the inno­cent, dis­crim­i­na­tion on the basis of race, and effec­tive deter­rence of crime. These con­cerns are present through­out the crim­i­nal jus­tice process­es from arrest, to tri­al, to sen­tenc­ing, to appeals, and to the final chap­ter in death penal­ty lit­i­ga­tion such as this.” Judge Raymond Kethledge dis­sent­ed from the major­i­ty opin­ion. Ohio Attorney General Mike DeWine’s office has not yet decid­ed whether to appeal the decision. 

(J. Provance, ​“Judges back tem­po­rary Ohio halt to exe­cu­tions,” Toledo Blade, April 7, 2017; K. Palmer, ​“U.S. Appeals Court Upholds Stay of Ohio Lethal Injection Process,” Reuters, April 6, 2017.) Read the deci­sion, In Re: Ohio Execution Protocol.

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