After going more than three years without killing any death row inmates, Ohio is set to resume executions after a federal appeals court ruled Wednesday that the state can continue using midazolam, the controversial lethal injection drug present in several recent botched U.S. executions.
“We will grant that the plaintiffs have shown some risk that Ohio’s execution protocol may cause some degree of pain, at least in some people,” Judge Raymond Kethledge wrote in the majority opinion for the 6th Circuit Court of Appeals. “But some risk of pain is inherent in any method of execution — no matter how humane. And the Constitution does not guarantee ‘a pain-free execution.’”
While people may differ on whether “the potential risk of pain here is acceptable,” Kethledge said, the lawyers for three Ohio inmates facing execution — each was convicted of at least one murder — failed to prove that Ohio’s protocol was “‘sure or very likely’ to cause serious pain.”
Ohio hasn’t put anyone to death since 2014, when the state used an untested combination of two lethal injection drugs to execute Dennis McGuire, who was convicted of the 1989 rape and murder of a 22-year-old pregnant woman named Joy Stewart. One of those drugs was midazolam, which was meant to sedate McGuire before a fatal dose of the opioid hydromorphone was administered. McGuire reportedly made gasping, snorting, and snoring sounds for more than 15 minutes before he died.
A federal judge ruled in January that the state’s lethal injection methods were unconstitutional.
Ohio wasn’t the first state to use midazolam in an execution — Florida was, in 2013 — but McGuire’s execution drew national criticism. A Harvard Medical School anesthesiologist, who testified for McGuire’s defense that using a sedative like midazolam in executions was a mistake, later told the Guardian, “This was all totally unnecessary.”
But in the years since McGuire’s death, the use of midazolam in executions has actually grown more common because drug manufacturers and distributors have shown an increasing reluctance to allow their products to be used in executions, leaving states with few options. (That reluctance led Ohio, citing difficulties in obtaining new drugs, to voluntarily stop executing inmates until this year.) In a 5-4 ruling in 2015, the U.S. Supreme Court found that a three-drug lethal injection protocol involving midazolam was constitutional because it likely did not induce pain that rose to the level of “cruel and unusual punishment.”
“While most humans wish to die a painless death, many do not have that good fortune,” Justice Samuel Alito wrote in the majority opinion. “Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.”
Since McGuire’s death, midazolam has been used in botched executions in Oklahoma, Arizona, and Alabama. In Arizona, state officials injected convicted murderer Joseph Wood with midazolam nearly 15 times over the course of two hours before he finally died; in Oklahoma, two inmates being executed spoke long after the midazolam should have knocked them out. Charles Warner, convicted for raping and killing an 11-month-old baby, told officials, “My body is on fire.”
Lawyers for the four inmates put to death by Arkansas in April also contend that the midazolam failed in at least one of the executions; inmate Kenneth Williams reportedly lurched forward after the midazolam should have taken effect.
Ohio is set to deploy midazolam in a three-drug lethal injection mixture — as is now more common — on July 26 to execute Ronald Phillips, who was convicted of raping and killing a 3-year-old girl in 1993.