Appeals court rejects Ohio's new process for executing Death Row inmates

Midazolam use unconstitutional, judges say

COLUMBUS, Ohio (AP) — A federal appeals court has rejected Ohio's new three-drug lethal injection process as the state struggles to resume executions.

The 6th U.S. Circuit Court of Appeals in Cincinnati in a 2-1 decision Thursday ruled the state's proposed use of a contested sedative called midazolam unconstitutional.

The court also said the state's decision to use two other drugs in the process that Ohio abandoned years ago prevents the reintroduction of their use.

The ruling is a blow to the state, which hopes to execute several condemned killers beginning next month.

A spokesman for the Ohio attorney general's office says options include asking for a full appeals court review or an appeal to the U.S. Supreme Court.

At issue for the court as whether midazolam sedates inmates enough to stop them from feeling pain and whether the state could find an alternative drug for future executions. 

A month ago, attorneys for several Death Row inmates had argued 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, had argued. Tibbetts was convicted in 2001 of killing his wife, Judith Sue Crawford, and Fred Hicks.  

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 art an earlier hearing 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.”

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