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Governor says 'no executions' without court-backed drugs

Posted at 10:41 AM, Feb 26, 2019
and last updated 2019-02-26 10:41:51-05

COLUMBUS, Ohio (AP) — Recent statements and actions by Gov. Mike DeWine suggest Ohio could go years without executing another death row inmate.

Last month, the Republican governor ordered the prison system to come up with a new lethal drug protocol after a federal judge's scathing critique of the first drug in Ohio's method.

Last week, DeWine said Ohio "certainly could have no executions" during that search and the court challenges that would follow adopting a new system.

After Ohio started looking for new drugs in 2014, it took the state more than three years to establish its current three-drug lethal injection protocol. Since then, it has become even more difficult for states to find drugs, meaning a new search could easily last as long.

The first drug in Ohio's new system, the sedative midazolam, has been subject to lawsuits that argue it exposes inmates to the possibility of severe pain because it doesn't render them deeply enough unconscious.

Because of Ohio's use of midazolam, federal Judge Michael Merz called the constitutionality of the state's system into question in a Jan. 14 ruling and said inmates could suffer an experience similar to waterboarding.

But because attorneys for death row inmate Keith Henness didn't prove a viable alternative exists, Merz declined to stop the execution.

But DeWine did, postponing Henness' execution from Feb. 13 until Sept. 12, although that would be contingent on the state having a new, court-approved lethal injection system in place, which is unlikely in that time frame.

Ohio is also scheduled to execute Cleveland Jackson on May 29, a timeline Merz questioned last week, given the governor's order.

Surely the prison system is "not 'planning' on carrying out an execution using a protocol the Governor has publicly disavowed," Merz wrote Friday.

In the same opinion, he said DeWine's decision "embodies excellent public policy" since a fully constitutional method could avoid the usual last-minute delays.

DeWine says it wouldn't be right to carry out executions until a lethal drug method meets with court approval.

"Ohio's not going to execute someone under my watch when a federal judge has found it to be cruel and unusual punishment," DeWine said during a Feb. 19 forum sponsored by The Associated Press.

Attorney General David Yost, a fellow Republican, deferred to DeWine and his decision to ask the Department of Rehabilitation and Correction for a new system.

If DeWine "feels that the prudent course is to develop a new cocktail, we're going to look and see what DRC comes up with and we will appeal in court to defend its constitutionality," Yost told the AP.

Prosecutors say they trust DeWine will resolve the issue so executions can resume.

Capital punishment is "an important criminal deterrent, and an expression of society's moral outrage at the most heinous crimes in the state," said Louis Tobin, executive director of the Ohio Prosecuting Attorneys Association.

DeWine should be applauded for his statements, said Tim Young, the state public defender, who said the breadth of expert testimony heard by Merz, the federal judge, made it clear the drug is inappropriate for executions because it's not a traditional anesthetic.

Finding a new lethal drug system will take time, as it should, Young said.

"When the government is going to use its awesome power to kill somebody, to take a life, it should be incredibly thoughtful and deliberate about that," he said.

Henness, 55, was convicted of killing 51-year-old Richard Myers in Columbus in 1992. Authorities say Myers had been helping Henness find a drug treatment for his wife.

Ohio's last execution was July 18, when Robert Van Hook was put to death for choking and fatally stabbing David Self, whom he met in a Cincinnati bar in 1985.