Ohio Governor Halts ​“Cruel and Unusual” Lethal-Injection Executions

Ohio Governor Mike DeWine (pic­tured) has halt­ed all exe­cu­tions in the state until its Department of Rehabilitation and Correction is able to devel­op a new exe­cu­tion pro­to­col that gains approval from the courts. Responding to the find­ings of a fed­er­al court that likened Ohio’s three-drug lethal-injec­tion pro­to­col to a com­bi­na­tion of water­board­ing and chem­i­cal fire, DeWine said ​“Ohio is not going to exe­cute some­one under my watch when a fed­er­al judge has found it to be cru­el and unusu­al pun­ish­ment.” DeWine announced his deci­sion at an Associated Press forum in Columbus on February 19. The Republican gov­er­nor did not set a date on which he expect­ed exe­cu­tions to resume, say­ing “[a]s long as the sta­tus quo remains, where we don’t have a pro­to­col that has been found to be OK, we cer­tain­ly can­not have any exe­cu­tions in Ohio.”

On January 14, fed­er­al mag­is­trate Judge Michael Merz issued an opin­ion say­ing that exe­cu­tions under Ohio’s cur­rent drug pro­to­col ​“will almost cer­tain­ly sub­ject [pris­on­ers] to severe pain and need­less suf­fer­ing.” Mertz not­ed that 24 of 28 avail­able autop­sies from exe­cu­tions involv­ing the seda­tive mida­zo­lam — the first drug in Ohio’s pro­to­col — showed evi­dence of pul­monary ede­ma, a build-up of flu­id in the lungs that 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.” Mertz found that mida­zo­lam lacked the phar­ma­co­log­i­cal prop­er­ties nec­es­sary to keep the pris­on­er uncon­scious dur­ing the admin­is­tra­tion of the par­a­lyt­ic sec­ond drug, rocuro­ni­um bro­mide, and the heart-stop­ping third drug, potas­si­um chlo­ride. As a result, he said, the pris­on­er would expe­ri­ence the sen­sa­tion of ​“fire … being poured” through his veins when those drugs were admin­is­tered. The court’s rul­ing led DeWine to issue a six-month reprieve to death-row pris­on­er Warren Keith Henness, who had been sched­uled to be exe­cut­ed February 13.

DeWine spon­sored Ohio’s cap­i­tal pun­ish­ment law as a state sen­a­tor in 1981 and lat­er rep­re­sent­ed the state in death-penal­ty cas­es as its Attorney General. The gov­er­nor, who is Catholic and iden­ti­fies him­self as pro-life, has not said how those beliefs affect his stance on the death penal­ty. When reporters at the forum asked about his per­son­al views on cap­i­tal pun­ish­ment, DeWine equiv­o­cat­ed. ​“It is the law of the state of Ohio,” he said. ​“And I’ll let it go [not com­ment fur­ther] at this point. We are see­ing clear­ly some chal­lenges that you have all report­ed on in regard to car­ry­ing out the death penal­ty.” Ohio has six more exe­cu­tions sched­uled in 2019 and 23 sched­uled through 2023.

Kevin Werner of Ohioans to Stop Executions praised the governor’s deci­sion, but cau­tioned that broad prob­lems iden­ti­fied in a 2014 Task Force Report on the state’s death penal­ty still need to be addressed. The peo­ple set to be exe­cut­ed, he said, are among the most vul­ner­a­ble in the crim­i­nal legal sys­tem: ​“They are peo­ple who are poor, who killed white vic­tims, and who have some under­ly­ing sub­stance abuse or abuse as chil­dren or have a men­tal ill­ness — I mean, that’s who we’re talk­ing about here.”