The full 6th U.S. Circuit Court of Appeals on Wednesday put executions back on track in Ohio
By a slim 8-6 margin, the court overturned an earlier 2-1 decision by a 6th Circuit panel, as well as a district court ruling that had barred the state from using a three-drug protocol announced last fall.
The ruling means the state can proceed with the planned execution of Ronald Phillips, set for July 26 at the Southern Ohio Correctional Facility near Lucasville.
The state has not had an execution since Jan. 16, 2014, when Dennis McGuire struggled, coughed and gasped during a 20-minute procedure.
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Allen L. Bohnert, a federal public defender representing Phillips, issued a statement saying that midazolam, a drug proposed to be used by the state, "is not a suitable drug for lethal injection, and especially when used with the two excruciatingly painful drugs Ohio abandoned in 2009. Today's 8 to 6 narrowly divided ruling doesn't change that fact. Indeed, this close split between the appellate court judges further demonstrates the underlying reasonableness of the district court's order blocking the executions until a trial could be held."
But the court majority ruled: "The plaintiffs have failed to demonstrate a likelihood of success on their claims" that the new execution method would be unconstitutional.
Three prisoners on Ohio's execution list claim that the state's execution protocol "would cause them to suffer severe pain in violation of the Eighth Amendment."
Wednesday decision by Judge Raymond M. Kethledge noted, "In a sense the claim is unprecedented: the Supreme Court 'has never invalidated a state's chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.'" He qas quoting a 2015 U.S. Supreme Court ruling.
"The state's chosen procedure here is the same procedure (so far as the combination of drugs is concerned) that the Supreme Court upheld" in that 2015 case, Kethledge said. "Every other court of appeals to consider that procedure has likewise upheld it, including most recently the (8th U.S. Circuit Court of Appeals), which rejected a nearly identical challenge in a procedural posture identical to the one here."
Judge Karen Nelson Moore in dissent of Wednesday's ruling: "There is no dispute that the second and third drugs in Ohio's execution protocol cause immense pain. There is significant evidence that the first drug, midazolam, cannot prevent someone from feeling that pain. ... More egregiously, the majority has decided to forego a trial even though the district court, which has the better view of the evidence, determined that plaintiffs should have a trial because they are likely to succeed on the merits of their constitutional claim."
She concluded: "Plaintiffs should not be executed before a trial on the constitutionality of Ohio's execution method."
Bohnert said he will appeal to the U.S. Supreme Court, which now apparently is the only avenue to stopping the scheduled execution.
Gov. John Kasich earlier this year rescheduled executions in line with the district court's ruling.