CINCINNATI (AP) — 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 Alabama, Arizona, Arkansas, Ohio and Oklahoma.
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. Allen Bohnert, a public defender representing death row inmates, 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.
