Ohio Lethal Injection Drug Challenge Can Proceed

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By Patrick L. Gregory

Three death row inmates can continue challenging Ohio’s death penalty protocol, after a ruling by the U.S. Court of Appeals for the Sixth Circuit April 6 ( Fears v. Otte , 2017 BL 113257, 6th Cir., No. 17-3076, 4/6/17 ).

They argued that Ohio’s use of midazolam—a sedative—in executing prisoners by lethal injection is unconstitutional because the drug still allows a person to feel excruciating pain, the court said.

The court upheld the district court’s grant of a preliminary injunction preventing use of the protocol, in a decision by Judge Karen Nelson Moore.

The district court didn’t abuse its discretion in finding that the inmates were likely to succeed on the merits of their claim that the execution protocol violates the U.S. Constitution’s prohibition of cruel and unusual punishment, the Sixth Circuit said.

That claim required showing that the “protocol created a substantial risk of pain” and that the inmates “identified a known and available alternative” execution method, the appeals court said.

In ruling for the inmates, the district court relied on expert and eyewitness testimony about recent executions that used the protocol and indications that those executed may have felt pain, the court said.

Further, the U.S. Supreme Court has offered only “limited guidance” on what constitutes an “available alternative,” and the district court relied on a reasonable definition provided by the inmates, the Sixth Circuit said.

Under that definition, an alternative method is “available” if there is a “reasonable possibility” it can be used, the court said.

Judge Jane Branstetter Stranch joined the decision.

Dissenting, Judge Raymond M. Kethledge said the majority improperly failed to consider whether the protocol was “sure or very likely” to result in serious pain.

The Ohio attorney general’s office argued for the state. The federal public defender’s office for the Southern District of Ohio argued for the inmates.

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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