A divided federal court of appeals has rejected a challenge to the three-drug execution protocol Ohio plans to use.

The state had suspended executions for more than three years due to litigation attacking its three-drug lethal injection method, and to its inability to obtain barbiturates formerly used to anaesthetize death row prisoners before being given two other drugs — one a paralyzing agent and the other causing cardiac arrest.

A federal district court judge had issued a preliminary injunction against carrying out those sentences using the three-drug method, and a three-judge panel of the appeals court voted 2-1 in agreement with the lower court that the protocol was likely to violate the Eighth Amendment’s ban on cruel and unusual punishments.

But on June 28, the full membership of the Sixth Circuit overturned the decisions of the district court and three-judge panel, by an 8-6 margin. By lifting the injunction, this sets the way to renew undertaking executions. The first execution date, for plaintiff Ronald Phillips, is slated for July 26. But his counsel says he plans to appeal the latest ruling on the execution drugs to the U.S. Supreme Court. If the high court agrees to hear the case, further delays are almost certain. As matters stand now, however, Ohio has three more executions scheduled for this year and some 20 more scheduled to occur by the end of 2020.

The three plaintiffs in the original appeal (In Re: Ohio Execution Protocol) had been sentenced to death for crimes even the dissenting judges called “horrific.” Phillips raped and beat to death the 3-year-old daughter of his girlfriend; another killed an elderly man with butcher knives and fatally cracked open the skull of the man’s caretaker; the third twice in a three-day period entered a home, robbed and shot the resident to death, and then went out partying.

The plaintiffs’ main argument is that the state’s proposed use of the valium-like sedative midazolam hydrochloride as an anesthetic substitute for hard-to-find barbiturates poses an unconstitutional risk of inflicting serious pain during the execution.

But the majority opinion in the en banc appellate review, written by Judge Raymond Kethledge, faulted the district court’s decision for using the wrong standard for reviewing the constitutionality of a state’s capital punishment method.

The majority found the lower court’s finding that the use of midazolam created a “substantial risk” of serious harm fell short of the Supreme Court’s standard in the 2015 case Glossip v. Gross, which upheld Oklahoma’s use of the exact same three-drug protocol that Ohio plans to us, whereby challengers must show the state’s method was certain or very likely to cause excessive pain. The majority also noted other federal appeals courts had approved Ohio’s method, and said the lower court’s findings provided “little support” for its conclusion the three-drug protocol would be unconstitutional. It also rejected the lower court’s acceptance of what it termed the plaintiffs’ “meritless” argument that Ohio was bound by its statement in a 2009 case settlement, when the state planned to adopt a single-drug protocol, that it would never go back to a three-drug method.

Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com and PrisonerResource.com.

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).