Ohio Supreme Court to Review Validity of State’s Execution Protocol

A divid­ed Ohio Supreme Court has agreed to hear the appeals of two death-row pris­on­ers who are chal­leng­ing the legal­i­ty of the state’s exe­cu­tion pro­to­col. By votes of 4 – 3, the court on October 13, 2020 accept­ed for review appeals by Cleveland Jackson (pic­tured) and James O’Neal assert­ing that Ohio’s exe­cu­tion pro­to­col is invalid because the Ohio Department of Rehabilitation and Correction (ODRC) adopt­ed it in vio­la­tion of state regulatory requirements.

Under Ohio law, an exec­u­tive-branch agency must sub­mit rules to the Joint Committee on Agency Rule Review (JCARR) for an assess­ment of whether the pro­posed rule falls with­in the agency’s statu­to­ry author­i­ty and is con­sis­tent with the leg­isla­tive intent of the statute it seeks to imple­ment. The pris­on­ers argue that the exe­cu­tion pro­to­col is a reg­u­la­tion that is sub­ject to state rule-mak­ing pro­ce­dur­al require­ments, but that ODRC nev­er sub­mit­ted it to the JCARR for review. The fail­ure to do, they say, requires the court to strike down the pro­to­col. The ODRC argues that the pro­to­col was an order, not a rule, and is not sub­ject to Ohio’s pre-review requirements. 

Both pris­on­ers lost their claim in Ohio’s Court of Appeals for Franklin County, which held that the exe­cu­tion pro­to­col was not a ​“rule” gov­ern­ing state pro­ce­dures but ​“an order respect­ing the duties of employ­ees.” The court rea­soned that rules gov­ern ​“day-to-day pro­ce­dures or oper­a­tions,” but exe­cu­tions are not part of the reg­u­lar day-to-day oper­a­tions of the ODRC.

Four mem­bers of the court — Justices Michael Donnelly, Judith French, Sharon Kennedy, and Melody Stewart — vot­ed to hear Jackson’s and O’Neal’s appeals. Chief Justice Maureen O’Connor and Justices Patrick Fischer and Patrick DeWine, dissented.

Jackson and O’Neal also argued that the ODRC pro­to­col amount­ed to a sub­stan­tive change in Ohio law and sought review of their claims that the agency ​“usurped the leg­isla­tive pow­er when it changed Ohio’s exe­cu­tion method” and that Ohio’s General Assembly ​“uncon­sti­tu­tion­al­ly del­e­gat­ed leg­isla­tive author­i­ty to ODRC to change Ohio’s exe­cu­tion method.” The court declined to hear those issues, with Justices Donnelly and French indi­cat­ing that they would have ​“accept[ed] the appeal on all propo­si­tions of law.”

On September 4, Governor Mike DeWine issued exe­cu­tion reprieves for Jackson and O’Neal, cit­ing ​“ongo­ing prob­lems involv­ing the will­ing­ness of phar­ma­ceu­ti­cal sup­pli­ers to pro­vide drugs to the Ohio Department of Rehabilitation and Correction … with­out endan­ger­ing oth­er Ohioans.” Pharmaceutical com­pa­nies, he said, had threat­ened to refuse to sell med­i­cines to the state if Ohio divert­ed drugs intend­ed for ther­a­peu­tic pur­pos­es for use in executions.

DeWine resched­uled Jackson’s exe­cu­tion from January 13, 2021 to June 15, 2023. He resched­uled O’Neal’s exe­cu­tion from February 18, 2021 to August 16, 2023. The state last car­ried out an exe­cu­tion in July 2018.