July 19 (UPI) -- Attorneys for a convicted child killer asked the U.S. Supreme Court to delay the executions of three men on Ohio's death row, saying a lower court erred in its ruling last month.
The filing with the high court Tuesday says the U.S. 6th Circuit Court of Appeals used the wrong standard for determining the legitimacy of Ronald Phillips' Eighth Amendment challenge against cruel and unusual punishment. The appeals court overturned a lower court's decision giving an injunction against Ohio's new lethal injection 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.
In the Supreme Court filing, attorneys said the appeals court used a "standard for proving an Eighth Amendment challenge to a method of execution that is even 'more rigorous' than the standard this court has repeatedly set forth and applied, both in method-of-execution challenges and in the Eighth Amendment case law on which this court's capital cases are based."
The lawyers also sough stays for two other Ohio death-row inmates: Gary Ott (Sept. 13) and Raymond Tibbetts (Oct. 18).
In October 2016, Ohio said it would resume executions after a three-year hiatus caused by difficulties obtaining the drugs used previously.
The last person executed in the state was Dennis McGuire on Jan. 16, 2014. It took nearly 25 minutes for him to die from a cocktail of midazolam and hydromorphone, gasping and choking throughout. His family filed a lawsuit, saying the execution caused him "needless pain," but dropped the suit after Ohio introduced a moratorium on executions.
Eric DuVall contributed to this report.