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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