Federal Appeals Court OK’s Ohio Execution Method

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Just because an inmate feels like he’s being suffocated after a lethal injection, that doesn’t amount to cruel and unusual punishment, the U.S. Court of Appeals for the Sixth Circuit ruled Wednesday, the Columbus Dispatch reports. A three-judge panel of the court said a federal judge in Dayton was wrong when he ruled that Ohio’s execution protocol is unconstitutional because it is likely to create the sensation of drowning after the first of three drugs is administered, and then burning when another drug is given. Gov. Mike DeWine put Ohio executions on hold and ordered correction 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 would have blocked the execution of killer Warren Henness if not for a 2015 U.S. Supreme Court decision.

Merz said one cause of the suffering was the drowning sensation produced by the first drug, midazolam. Another cause would be the burning sensation caused by the third, a heart-stopping drug, because midazolam doesn’t have the painkilling properties that drugs such as opioids do. The appeals court, citing an opinion by Supreme Court Justice Neil Sorsuch, said the Constitution’s “Eighth Amendment only prohibits forms of punishment that seek to intensify an inmate’s death by ‘superadd[ing]’ feelings of ‘terror, pain, or disgrace.’ ” It still is an open question whether DeWine will 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.”

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