Amid Drug Concerns, Executions On Hold in Ohio

A federal magistrate judge on Thursday blocked Ohio's plan to resume carrying out executions next month using a new three-drug process that, he said, could subject the condemned to cruel and unusual punishment.
by | January 27, 2017 AT 12:20 PM

By Jim Provance

A federal magistrate judge on Thursday blocked Ohio's plan to resume carrying out executions next month using a new three-drug process that, he said, could subject the condemned to cruel and unusual punishment.

U.S. District Magistrate Judge Michael R. Merz in Dayton issued a preliminary injunction preventing the next three scheduled executions and specifically prohibiting any process employing a paralytic agent or potassium chloride.

Ohio had been set to use its latest lethal injection protocol on Feb. 15 to execute Ronald R. Phillips, who was convicted in the 1993 rape and murder of his Akron girlfriend's 3-year-old daughter.

It planned to use an intravenous combination of midazolam, an anti-anxiety medication; rocuronium bromide, a paralytic agent, and finally potassium chloride, to stop the heart.

Ohio last completed an execution in January, 2014, when witnesses described Dennis McGuire, of Montgomery County, as struggling against his restraints and snorting and choking as two drugs, midazolam and opiate painkiller hydromorphone, began to flow. The process took an unusually long 26 minutes.

Midazolam would also be the first drug used in Ohio's latest protocol, unveiled in October. The state maintains the drug would render the inmate unconscious before it administers the second and third drugs.

But the judge cited experts who questioned whether the first truly renders its victims unconscious.

"First of all, there appears to be consensus and the Court finds that administration of a paralytic drug and potassium chloride will cause a person severe pain," Judge Merz wrote. "There is nothing in the testimony to suggest this pain would be limited to persons with particular physical characteristics."

Attorney General Mike DeWine's office said it will review the decision and speak with its client, the Department of Rehabilitation and Correction, before deciding the next step. It could appeal the ruling to the U.S. Sixth Circuit Court of Appeals in Cincinnati.

The judge pointed to problematic executions that occurred in other states, some of which have since abandoned the use of midazolam as Ohio once did.

Ohio has frequently changed its lethal injection process in recent years as it tried to keep ahead of domestic and European drug manufacturers who blocked state access to their products because they objected to their use in executions. The state has offered at least temporary anonymity to compounding pharmacies in hopes they would manufacture such drugs from scratch, but there's been no indication that this has worked.

Eventually, it settled on its latest three-drug protocol using drugs that are all commonly available. The state has said it has obtained enough quantities to carry out multiple executions.

"Plainly, midazolam does not have the same pharmacologic effect on persons being executed as the barbiturates thiopental sodium and pentobarbital," Judge Merz wrote. "The Plaintiffs' experts explained at great length why this was likely to be so. The Court finds from both the expert opinions and the lay descriptions comparing executions with a barbiturate as the first drug and midazolam as the first drug that the drugs do not produce the same effects in those being executed.

"Without knowing precisely why, the Court finds that those administered midazolam (whether in a one injection combination with hydromorphone or in sequence with a paralytic and potassium chloride) take longer to die and exhibit different bodily behaviors in the process," he wrote. "In terms of their respective effects on the human body, deep sedation and general anesthesia are distinct."

In addition to Phillips, the preliminary injunction applies to executions scheduled for Gary Otte, of Cuyahoga County, on March 15 and Raymond Tibbets, of Hamilton County, on April 12. Judge Merz has fast-tracked on the merits of the plaintiffs' claims as he weighs whether to make the injunction permanent.

"This ruling brings Ohio in line with recent developments from other states that have recognized that midazolam is not an appropriate drug for use in executions," said Megan McCracken of the Berkeley Law School Lethal Injection Project in California. "It cannot induce general anesthesia or maintain unresponsiveness when painful stimuli are introduced, as they are in a three-drug lethal injection procedure. The risks of extraordinary pain and suffering with this protocol are unconstitutional, and this ruling correctly recognizes the problems with midazolam."

Judge Merz was first appointed in 1984 by the U.S. District judges making up the Southern District of Ohio, who chose him from recommendations made by a committee. He was subsequently reappointed multiple times.

But unlike other federal judges, as a magistrate judge he does not serve a lifetime appointment and was not confirmed by the U.S. Senate.

Both sides in this case agreed for the magistrate to make the decision related to these three death row inmates without separate approval from a judge.

Temporary moratoriums issued by the courts and Gov. John Kasich have postponed executions for three years since McGuire was put to death.

The state recently announced that it plans to move death row from the Chillicothe Correctional Institution to the Toledo Correctional Institution. The execution chamber, however, will remain at the Southern Ohio Correctional Facility in Lucasville.

(c)2017 The Blade (Toledo, Ohio)