Appeals court lifts injunction on Ohio lethal injections

By Eric DuVall

June 29 (UPI) -- The 6th Circuit Court of Appeals on Thursday lifted a court order preventing Ohio from carrying out lethal injections, clearing the way for a death row inmate's execution next month.

The full 6th Circuit weighed in on a lawsuit brought on behalf of three Ohio death row inmates, overturning a three-judge panel's decision to grant a preliminary injunction against state-sponsored lethal injections after Ohio introduced a change to its drug protocol.


Ohio is one of several states to alter the traditional three-drug cocktail used for decades in lethal injections after European drug companies refused to sell the barbiturate commonly used in executions over ethical concerns. State and federal courts have disagreed on whether the revised lethal injection protocol constitutes "cruel and unusual punishment," the constitutional threshold for criminal punishment.

The Cincinnati-based 6th Circuit agreed with lawyers for the inmates that the revised protocol presents "some risk of pain," but said such a risk was impossible to avoid in any form of capital punishment, and was thus legal under the Constitution.

"[S]ome risk of pain 'is inherent in any method of execution -- no matter how humane,'" Judge Raymond Kethledge wrote for the majority. "And the Constitution does not guarantee 'a pain-free execution.' 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. The district court did not meaningfully apply that standard here. And the plaintiffs have fallen well short of meeting it."

Though the injunction had only been in place for a few months, Ohio has not conducted an execution in more than three years. On July 26, the Ohio Department of Corrections is scheduled to execute inmate Ronald Phillips of Summit County for the 1993 rape and murder of his girlfriend's 3-year-old daughter.

Ohio's last execution, which used the drug protocol in question, took place in 2014, and caused alarm. The inmate, Dennis McGuire, gasped for breath and strained against the straps tying him to the gurney for an unusually long 26 minutes before finally succumbing to the drug cocktail, witnesses said.

At the root of the argument is whether the first drug used in the new protocol, midazolam, is powerful enough to render the inmate fully unconscious -- rather than just heavily sedated -- before the painful effects of the second and third drugs, which shut down the respiratory system and induce cardiac arrest.


Lawyers for the inmates pledged they would appeal the ruling to the Supreme Court.

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