By Marty Schladen
The Repository, Canton, Ohio
CINCINNATI — The 6th U.S. Circuit Court of Appeals ruled Wednesday that just because an inmate feels like he’s being suffocated after a lethal injection, it doesn’t amount to cruel and unusual punishment.
The three-judge panel, sitting in Cincinnati, said a federal judge in Dayton was wrong when he ruled in January that Ohio’s execution protocol is likely to make one feel like one is drowning and then burning when another drug is administered.
Ohio Gov. Mike DeWine put Ohio executions on hold and ordered corrections officials to come up with a new intravenous protocol after U.S. Magistrate Judge Michael Merz decided that the existing protocol almost surely caused unconstitutional suffering. Merz said he’d block the execution of convicted killer Warren Keith Henness if not for a 2015 U.S. Supreme Court decision.
One cause of the suffering, Merz wrote, was the drowning sensation produced by the first drug in the protocol, Midazolam. Another cause, according to the judge, would be the burning sensation caused by the third, heart-stopping drug because Midazolam doesn’t have the pain-killing properties that drugs such as opioids do.
Not so, the three-judge panel wrote. Citing a 2019 U.S. Supreme Court decision, they wrote, “Consider: Midazolam may cause Henness to suffocate. But the Eighth Amendment only prohibits forms of punishment that seek to intensify an inmate’s death by ‘superadd[ing]’ feelings of ‘terror, pain, or disgrace.’”
They were quoting from Justice Neil Gorsuch’s opinion in Bucklew v. Precythe, the U.S. Supreme Court’s most recent ruling regarding the death penalty. In discussing hanging, Gorsuch was arguing that at the time the Eighth Amendment was adopted, people didn’t see hanging as intentionally cruel, unlike practices such as disemboweling or burning the condemned while they were still conscious.
Despite the appeals court ruling, it’s still an open question whether DeWine will now allow executions to proceed. When he initially delayed them, he said, “Ohio is not going to execute someone under my watch when a federal judge has found it to be cruel and unusual punishment.”
And then, after The Dispatch reported that Ohio was using drugs in executions over their manufacturers’ and distributors’ objections, DeWine in July said Ohio could no longer get the drugs because the suppliers threatened to cut off all medicine to the state for any purpose. DeWine said the state would look for a non-intravenous execution protocol.
But at the same time, the state’s lawyers have been in court fighting to use the existing one. Or at least, the 6th Circuit believes that’s the case.
“Ohio has said that it intends to resume executions with this protocol if we approve,” the judges wrote in their six-page ruling.
DeWine press secretary Dan Tierney said further litigation in the case is likely, so he can’t comment on whether DeWine might allow further use of the protocol if the supply problems can be solved.
“That concern remains — regardless of the ruling or concerns about cruel and unusual punishment,” Tierney said.
The Office of the Federal Public Defender, which represents Henness and other Ohio death row inmates, hasn’t decided whether to ask for the case to be re-heard by the entire 6th Circuit or whether to appeal to the U.S. Supreme Court, said David Stebbins, a lawyer in the office. However, he did take issue with Wednesday’s ruling.
“After an extensive evidentiary hearing on the complex medical and scientific issues with Ohio’s three-drug lethal injection protocol with the risky sedative Midazolam, the district court issued a nearly 150-page decision finding the protocol causes pain and suffering beyond what the U.S. Constitution permits,” Stebbins said in an email.
“Today’s brief opinion concludes that the district court was incorrect, despite the court’s reliance on the extensive testimony of some of the nation’s leading experts that Midazolam cannot prevent pain, and indeed causes severe pain comparable to ‘a torture tactic.’”
Robert Dunham, executive director of the Death Penalty Information Center, said Tuesday’s ruling gives Henness’s lawyers grounds for appeal. He said the court’s job is to determine if the facts described by Merz were supported by the record. In this case, the record consists of testimony by what Merz regarded as leading experts in anesthesia and the physiology of pain. The appellate court’s second job, Dunham said, was to determine if the district judge’s legal conclusions were sound.
But the 6th Circuit panel’s opinion mixes those jobs together, saying that Henness didn’t show that he was likely to suffer severe pain and even if he did, it would still not violate the Eight Amendment, Dunham said.
“It looks like (the 6th Circuit) doesn’t want to admit the reality of what Ohio’s protocol does,” Dunham said. He added, however, that with the current conservative majority on the Supreme Court, Henness’s chances of prevailing there may be slim.
Meanwhile, an anti-death-penalty group said the decision illustrates the absurdity of the entire process.
“Rather than debating how much pain we are willing to allow people being executed to endure, we should be debating whether the death penalty truly serves the justice system and people of our state,” Hannah Kubbins, program director of Ohioans to Stop Executions, said in an email. “Governor DeWine said he wouldn’t use the Midazolam execution method and the 6th Circuit’s opinion shouldn’t change that. The facts and science about the protocol have not changed.”
©2019 The Repository, Canton, Ohio