CINCINNATI — Ohio moved a step closer to resuming executions as a federal appeals court ruled Wednesday in the state’s favor in a case over its lethal injection process.
In an 8-6 vote, the 6th U.S. Circuit Court of Appeals in Cincinnati reversed a judge’s order that delayed three executions after he declared Ohio’s lethal injection process unconstitutional. The three-drug method includes midazolam, a sedative involved in problematic executions in Arizona, Arkansas and Ohio.
The 6th Circuit ruling clears the way for the state to move forward with the three executions but isn’t a decisive ruling on the constitutionality of the three-drug method, said Allen Bohnert, a public defender representing death row inmates. He said they plan to ask the U.S. Supreme Court to hear the case.
JoEllen Smith, a spokeswoman for Ohio’s prisons agency, said the Ohio Department of Rehabilitation and Correction “remains committed to carrying out court-ordered executions in a lawful, humane and dignified manner.”
At issue was whether midazolam is powerful enough to put inmates into a deep state of unconsciousness before two subsequent drugs paralyze them and stop their hearts.
The judges, who had a rare hearing June 15 involving the entire court, concluded Wednesday that the inmates demonstrated the execution protocol might cause pain in some people, but said that wasn’t enough.
“Different people may have different moral intuitions as to whether — taking into account all the relevant circumstances — the potential risk of pain here is acceptable. But the relevant legal standard, as it comes to us, requires the plaintiffs to show that Ohio’s protocol is ‘sure or very likely’ to cause serious pain,” and they fell short, the court said.
The dissenting opinion, by Judge Karen Nelson Moore, said the court made the wrong decision about whether the inmates deserved a trial on their claim that the injection process is a cruel and unusual punishment.
“Plaintiffs should not be executed before a trial on the constitutionality of Ohio’s execution method,” she wrote.
A related issue is whether Ohio has a realistic chance of finding an alternative drug — a barbiturate called pentobarbital — that once was widely used in executions but has become difficult or, in Ohio’s case, impossible to obtain.
Ohio executions have been on hold since January 2014 when inmate Dennis McGuire took 26 minutes to die under a never-before-tried two-drug method that began with midazolam. The same drug was involved in a problematic execution later that year in Arizona and earlier this year in Arkansas.
Ohio hopes to execute condemned child killer Ronald Phillips on July 26.
Ohio announced its three-drug method in October and said it had enough for at least four executions, though records obtained by The Associated Press indicated the supply could cover dozens of procedures.
The prison system used 10 milligrams of midazolam on McGuire. The new system calls for 500 milligrams. The state said there’s plenty of evidence proving the larger amount will keep inmates from feeling pain.
Ohio also said the U.S. Supreme Court upheld the use of midazolam in 2015 in a case out of Oklahoma.
Objections to the use of midazolam rely on witness accounts of unusual movement by inmates being executed, something that by itself doesn’t mean the inmate isn’t unconscious, attorneys for the state told the appeals court in a May filing.
A “very likely” risk of pain isn’t proved by inmates who “coughed, heaved, flailed their arms, and/or clinched their fists at some point during the execution,” State Solicitor Eric Murphy wrote in the May 10 filing.
Attorneys for death row inmates disagree and say lower courts got it right when they said midazolam poses a substantial risk of him to inmates.
In years past, Ohio executed inmates with a single dose of pentobarbital without difficulty. By adding two other drugs to its new method — which paralyze inmates and stop their hearts — the state is “tacitly acknowledging that midazolam simply does not shut down brain function as barbiturates do,” attorneys challenging the three-drug method said in a May 25 court filing.
Kantele Franko reported from Columbus, Ohio. Associated Press reporter Andrew Welsh-Huggins in Columbus contributed to this report.