April 7 (UPI) -- An appellate court upheld a federal judge's ruling outlawing Ohio's newly announced drug protocol for lethal injection, putting off three scheduled executions.
In a 2-1 decision, the Cincinnati-based 6th Circuit Court of Appeals upheld a decision by federal Magistrate Judge Michael Merz in January, ruling the new drug protocol unconstitutional.
The judges' ruling was tied specifically to the use of the sedative midazolam as the first in a three-drug cocktail. Midazolam replaced sodium thiopental, a powerful barbiturate meant to immediately put the subject to sleep. The European makers of sodium thiopental have refused to sell the drug to the United States because it was being used in executions, which the makers said is not its intended use.
Citing evidence from prior lethal injections in Ohio and elsewhere, the judges ruled midazolam carried a substantial enough risk of pain to the prisoner that its use constituted cruel and unusual punishment.
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Their ruling was tied specifically to the use of midazolam, and did not outlaw the practice of lethal injection itself.
"We are bound by the district court's actual finding that 'use of midazolam as the first drug in a three-drug execution protocol will create a substantial risk of serious harm,'" the appellate panel said.
The decision puts on hold the execution of Raymond Phillips, which was scheduled to happen May 10. Two other inmates were scheduled to be put to death this summer.
The Ohio Department of Rehabilitation and Correction responded to the ruling, saying the agency "remains committed to carrying out court-ordered executions in a lawful and humane manner," the Columbus Dispatch reported.
In his dissenting opinion, Judge Raymond Kethledge said the risks posed by midazolam are within constitutional parameters for executions to be carried out in a humane fashion.
He said some level of pain is "inherent in any method of execution -- no matter how humane."
"The potential risk of pain here is acceptable," Kethledge wrote.
The state can appeal the ruling to a hearing of the full 6th Circuit, or directly to the Supreme Court.
