Scheduled Executions in Ohio Delayed Pending Appeals Court Ruling

Governor John Kasich (R-Ohio) released a statement on Friday, February 10, 2017, explaining that due to a federal magistrate’s ruling on Jan. 26, 2017, staying three scheduled executions due to the state’s use of midazolam, a total of eight executions in Ohio have had to be rescheduled.

The first scheduled execution by lethal injection in Ohio, that of Ronald Phillip, whose February 15, 2017, execution date has now been postponed until May 10, 2017, pending the outcome of the state’s appeal before the 6th District Court of Appeals in Cincinnati to take place February 21, 2017.  Seven other death row inmates have seen their scheduled executions moved back by several months as well.

Gov. Kasich expressed confidence that the 6th District U.S. Court of Appeals will overturn the Jan. 26, 2017 ruling of U.S. District Court Magistrate Judge Michael Merz, citing the U.S. Supreme Court’s 2015 ruling in the Glossip v. Gross case, where by a 5-4 decision, the high court determined that using midazolam for executions did not violate the Constitution.

In his decision, Judge Merz explained that the U.S. Supreme Court did not imply in its ruling that midazolam could never be proven to present an intolerable risk of harm, the point of the lawsuit brought against the state of Ohio by several death row inmates. Merz wrote that he found his court to be free to evaluate the potential harmfulness of midazolam and agreed with the plaintiffs that use of the drug in the state’s three-drug lethal injection process, writing, “use of midazolam as the first drug in Ohio’s present three-drug protocol will create a ‘substantial risk of serious harm’ or an ‘objectively intolerable risk of harm.’”

Whether the 6th District Court of Appeals agrees with the state of Ohio and overturns Judge Merz’s ruling will depend on that court’s interpretation of the U.S. Supreme Court’s ruling in 2015, where Justice Samuel Alito, writing for the majority, explained that the plaintiffs in the Glossip v. Gross case “failed to identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-of-execution claims.”

Ohio was the first state to use midazolam in its lethal injection protocol after pharmaceutical companies blocked the sale of the barbiturate, pentobarbital, for use in executions. The use of midazolam in lethal injections in Ohio and other states, including Alabama, Arizona and Oklahoma, when it became known that the deaths of some inmates not only took minutes and even hours, but that the inmates struggled to breathe and writhed in pain, often while yet conscious.

In December 2016, the state of Arizona announced it would no longer use midazolam for executions.

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