Governor Grants Execution Reprieve Over Concerns About Ohio’s Lethal-Injection Process

Citing a fed­er­al court’s con­cerns that Ohio’s lethal-injec­tion process is unnec­es­sar­i­ly tor­tur­ous, new­ly inau­gu­rat­ed Ohio Governor Mike DeWine (pic­tured, left) has issued a six-month reprieve to death-row pris­on­er Warren Keith Henness (pic­tured, right), delay­ing his exe­cu­tion from February 13 to September 12, 2019. In grant­i­ng the reprieve, DeWine also direct­ed the Ohio Department of Rehabilitation and Correction to review Ohio’s pos­si­ble alter­na­tive drugs to car­ry out lethal-injection executions.

On January 14, fed­er­al mag­is­trate Judge Michael Merz issued an opin­ion liken­ing Ohio’s cur­rent three-drug exe­cu­tion process to a com­bi­na­tion of water­board­ing and chem­i­cal fire. Judge Merz wrote: ​“If Ohio exe­cutes Warren Henness under its present pro­to­col, it will almost cer­tain­ly sub­ject him to severe pain and need­less suf­fer­ing. Reading the plain lan­guage of the Eighth Amendment, that should be enough to con­sti­tute cru­el and unusu­al pun­ish­ment.” Nonetheless, Merz allowed the exe­cu­tion to go for­ward, say­ing the U.S. Supreme Court’s con­tro­ver­sial 2015 rul­ing in the lethal-injec­tion case Glossip v. Gross pre­vent­ed him from grant­i­ng a stay. Glossip requires a pris­on­er who chal­lenges an exe­cu­tion pro­to­col to pro­vide an alter­na­tive method that is ​“avail­able, fea­si­ble and can be read­i­ly imple­ment­ed,” a stan­dard Merz said that Henness was unable to meet. Henness’s attor­neys applaud­ed the governor’s deci­sion to issue a reprieve. ​“The evi­dence pre­sent­ed in the fed­er­al court hear­ing made it clear that mov­ing for­ward under the cur­rent lethal-injec­tion pro­to­col would sub­ject Mr. Henness to need­less pain and suf­fer­ing, in direct vio­la­tion of his rights under state law and the state and fed­er­al con­sti­tu­tions,” said David Stebbins of the fed­er­al pub­lic defender’s office. ​“We com­mend Governor DeWine for his lead­er­ship and for ensur­ing the jus­tice sys­tem oper­ates humane­ly in Ohio.”

Merz’s rul­ing described sev­er­al prob­lems with the use of mida­zo­lam, the first drug in Ohio’s lethal-injec­tion pro­to­col. He said that — con­trary to the evi­dence avail­able to the Court at the time of Glossip — mida­zo­lam does not ren­der the pris­on­er suf­fi­cient­ly uncon­scious to block the painful effects of the sec­ond drug, a par­a­lyt­ic, and the third drug, potas­si­um chlo­ride, which he said would feel ​“as though fire was being poured” through the prisoner’s veins. He also not­ed that 24 of 28 avail­able autop­sies from mida­zo­lam exe­cu­tions showed the pris­on­er expe­ri­enced pul­monary ede­ma, or flu­id in the lungs, which he said was ​“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.”

Ohio has strug­gled to find a con­sti­tu­tion­al­ly and legal­ly accept­able method of exe­cu­tion. Its state law holds that exe­cu­tions must be ​“quick and pain­less.” After the 2014 botched exe­cu­tion of Dennis McGuire, the state changed its pro­to­col, remov­ing mida­zo­lam. It reversed course in October 2016, announc­ing a three-drug pro­to­col begin­ning with mida­zo­lam. In January 2017, Judge Merz halt­ed three exe­cu­tions because he said the pro­to­col amount­ed to cru­el and unusu­al pun­ish­ment, and a three-judge pan­el of the U.S. Court of Appeal for the Sixth Circuit upheld that deci­sion, but the full Sixth Circuit court reversed it in June 2017, allow­ing exe­cu­tions to resume. Since 2014, Ohio has car­ried out three exe­cu­tions, while 33 have been delayed by court deci­sions or by the state’s inabil­i­ty to obtain lethal-injection drugs.

(Editorial, Ohio’s death penal­ty fails to meet its own test, Akron Beacon Journal, January 25, 2019; Andrew Welsh-Huggins, Ohio gov­er­nor delays exe­cu­tion, orders look at oth­er drugs, Associated Press, January 25, 2019; Darrel Rowland, DeWine delays exe­cu­tion of Columbus killer due to judge’s con­cerns, The Columbus Dispatch, January 25, 2019; Marty Schlader, Ohio’s exe­cu­tion method likened to water­board­ing, fire in veins — but won’t change, The Columbus Dispatch, January 22, 2019.) See Lethal Injection.