CINCINNATI – Federal appeals court judges heard arguments Tuesday on why state prison officials should – or should not – be allowed to use a controversial drug to execute Ohio’s remaining 138 Death Row inmates.
The three-judge panel could ultimately decide if Ohio officials can resume executions later this year or if they need to hunt for a different drug to execute convicted killers.
Midazolam is one of three drugs the state says it needs to use for executions, which have been on hold since 2014. At issue for the court: whether midazolam sedates inmates enough to stop them from feeling pain and whether the state could find an alternative drug for future executions.
Attorneys for several Death Row inmates argued Tuesday that using midazolam is inhumane, pointing to the last time state officials used it to execute Dennis McGuire in 2014. McGuire snorted and gasped in the 26 minutes it took him to die after a lethal injection, witnesses say.
“We don’t believe midazolam can do what the state says it can do,” Erin Gallagher Barnhart, a federal public defender for Death Row inmate Raymond Tibbetts of Cincinnati, argued Tuesday. Tibbetts was convicted in 2001 of killing his wife, Judith Sue Crawford, and Fred Hicks. He is scheduled for execution in July.
The state was set to resume executions in February, but U.S. Magistrate Judge Michael Merz halted the process, calling into question Ohio’s lethal injection method and, more specifically, the use of midazolam.
An attorney for the state argued that not enough evidence exists (essentially, too few people have been executed with the drug) to ban it.
That didn’t seem to appease Judge Jane Branstetter Stranch.
“The question becomes how many people do you have to see go through horrific executions …” Stranch asked the state.
Additionally, the state argued it hasn’t been able to find a company willing to sell them other lethal drugs. The state has had trouble getting pentobarbital, a drug that lawyers for several death row inmates want used in future executions. The Danish company that manufactures pentobarbital has banned the sale of its drugs for the purpose of executions.
“That would be an alternative if (pentobarbital) was available, but the problem is it has not been available to the state of Ohio since the fall of 2013,” said Ohio Solicitor Eric Murphy. He added the state is seeking a federal import license for pentobarbital.
Other states have been able to obtain pentobarbital but don't reveal how they get it. Texas, for example, purchased vials of pentobarbital in 2015 and later shared some of it with Virginia for executions.
The use of midazolam in executions has been controversial for years. In 2015, the U.S. Supreme Court upheld its use in executions, writing that it did not violate the U.S. Constitution’s ban on cruel and usual punishment.
One judge referenced that case Tuesday as a reason he didn’t understand a lower court ruling early this year that halted state executions.
“Let me tell you candidly about my concern with the district court’s reasoning which is, there wasn’t much of it,” Judge Raymond M. Kethledge told Tibbetts’ attorney. “It’s findings are almost conclusory.”
The U.S. Court of Appeals judges will release a decision from Tuesday’s hearing at a later date.
There are 24 Hamilton County men awaiting execution on Ohio’s Death Row. Some – along with the victim’s families – have waited more than two decades for their execution.