By Andrew J. Tobias
Gov. Mike DeWine said Tuesday that there will be no more executions in Ohio until a new method of carrying them out can be developed and deemed constitutional by the courts.
"As 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," DeWine told reporters at an Associated Press forum in Columbus. "That would not be right, at least in my opinion."
Pressed on whether he personally supports the death penalty, DeWine paused. Seeming to choose his words carefully, he then said he was a sponsor of Ohio's current capital punishment law, which took effect in 1981.
"It is the law of the state of Ohio. 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. But I'm not going to go further down that path any more today," he said.
DeWine, a Republican, ordered a review of Ohio's death penalty protocols last month after a federal magistrate judge wrote that Ohio's method of carrying out executions would subject a condemned Ohio prisoner to "severe pain and needless suffering." Judge Michael Merz wrote Ohio could proceed with the execution, since the inmate, Warren Henness, did not produce an alternative that is "available," "feasible," and can be "readily implemented," required under a 2015 United States Supreme Court ruling that upheld lethal injection.
DeWine delayed Henness' execution from Feb. 13 to Sept. 12 while the review was underway. But on Tuesday, he declined to place a timetable on how long it might take for a new execution method to be developed, for it to be legally challenged and then found constitutional by the courts.
"I've dealt with the court system a long time, and I think it's whenever you think you can figure out how fast or slow something's going to take, you're wrong," he said.
Henness was convicted of murdering his drug-abuse counselor, Richard Myers, in 1992, but he maintains his innocence. Ohio's next inmate scheduled to be executed is Lima's Cleveland R. Jackson, with a scheduled execution date of May 29. He was convicted of murdering a teenager during a drug-related robbery in 2002. Gregory Lott, convicted in the 1986 murder of an elderly East Cleveland man, is scheduled to be executed on Aug. 14.
Ohio's method of execution is to inject the condemned with a combination of three drugs: midazolam (as a sedative), a paralytic drug, and potassium chloride to stop their heart. Death penalty opponents have challenged similar methods in other states, saying they are unconstitutional because they cause cruel and unusual punishment.
In his January opinion, Mertz, the federal magistrate judge, agreed with arguments made by Henness's lawyers, writing that "it is certain or very likely" that the state's prescribed dose of midazolam "cannot reduce consciousness to the level at which a condemned inmate will not experience the severe pain associated with injection of the paralytic drug or potassium chloride" or the "severe pain and needless suffering that is certain or very likely to be caused by the pulmonary edema which is very likely to be caused directly by the midazolam."
DeWine's review marks the second time in five years Ohio has searched for a new method of execution. The state changed the drugs it uses for lethal injection after the January 2014 execution of Dennis B. McGuire took more than 25 minutes.
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