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Ohio’s three-drug execution protocol is constitutional, the U.S. Court of Appeals for the Sixth Circuit held Feb. 1.
It’s the latest ruling to uphold the use of the controversial sedative midazolam—which death penalty opponents say doesn’t sufficiently prevent pain—in executions after the U.S. Supreme Court’s 2015 opinion in Glossip v. Gross condoned the practice.
A sharply divided 14-judge Sixth Circuit panel rejected a challenge to the protocol in June 2017, having voting along the partisan lines of the presidents who appointed them. All three Republican-appointed judges who again rejected the challenge this time were in the majority in last year’s decision.
Raymond Tibbetts and Alva Campbell, one of whom was a plaintiff in the June case, tried to halt their upcoming executions by claiming the state’s midazolam-based protocol presents a constitutionally unacceptable risk of pain and suffering.
But none of their new arguments, including that Ohio’s method causes undue psychological pain, show the protocol “presents a risk that is sure or very likely to cause serious pain and needless suffering,” Judge Alice M. Batchelder wrote for the court, upholding the district court’s rejection of their claim.
Nor could the inmates show an available, feasible execution alternative, as required, the court said.
“Tibbets and Campbell bore the burden of proof on this issue and they have produced nothing on appeal to convince us that that the district court was mistaken,” it said.
Judges John M. Rogers and Amul R. Thapar joined the opinion.
The Federal Defender, Columbus, Ohio, represented Tibbetts and Campbell. The Ohio attorney general represented the state.
The case is In re Ohio Execution Protocol Litig. (Campbell v. Kasich) , 2018 BL 33894, 6th Cir., 17-4221, 2/1/18 .
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