Federal judge bars use of three-drug killing process

DEATH PENALTY

DAYTON — A federal magistrate judge on Thursday barred the use of a three-drug process the state of Ohio planned to use to execute death-row inmates, declaring the method the state prefers to be unconstitutional.

Magistrate Judge Michael Merz of Dayton also halted the executions of three inmates scheduled the coming months.

Merz, in his 119-page order, ruled that there were enough problems with all three of the drugs Ohio intends to use in its execution protocol to warrant this disallowance. Two states, Arizona and Florida, have discontinued the use of one of the drugs, named midazolam.

“The court concludes that use of midazolam as the first drug in Ohio’s present threedrug protocol will create a ‘substantial risk of serious harm’ or an ‘objectively intolerable risk of harm’ as required by (Supreme Court precedent),” Merz wrote.

Inmates have been challenging Ohio’s execution protocols, and anti-deathpenalty advocates have sought to chip away at the state’s ability to execute people since executions resumed in 1999. The ruling may be short-lived, though, as it likely will be appealed.

A spokeswoman for Ohio Attorney General Mike DeWine’s office said the office is reviewing the decision. Ohio Department of Rehabilitation and Correction spokeswoman JoEllen Smith said in an email that the department “remains committed to carrying out court-ordered executions in a lawful and humane manner.”

Ohio hasn’t executed anyone since January 2014, when it took killer Dennis McGuire 25 minutes to die from a previously unused execution drug combination. McGuire was administered drugs including midazolam. Witnesses said he appeared to gasp several times during his execution and made loud snorting or snoring sounds.

State officials and the courts put executions on hold until the state picked a new lethal-injection drug combination of midazolam, rocuronium bromide and potassium chloride this past October. The challenge that led to Merz’s ruling Thursday was also borne out of McGuire’s execution.

During a hearing this month, Merz heard testimony on all three drugs. His ruling Thursday said the state cannot use any cocktail that contained potassium chloride or rocuronium bromide, a paralytic agent, since the state told a court in a previous proceeding that it would not use such drugs during future executions.

Those scheduled to die in the next few months included:

Ronald Phillips, an Akron man convicted in 1993 of raping his girlfriend’s 3-yearold daughter and beating her to death. His execution was scheduled for Feb. 15.

Gary Otte, an Indiana man convicted of shooting and killing two Parma residents during robberies in 1992. His execution was scheduled for March 15.

Raymond Tibbetts, a Cincinnati-area man convicted of murdering Judith Sue Crawford and Fred Hicks in 1997. His execution was scheduled for April 12.

Ohio has had trouble in recent years getting drugs to use for lethal injections in part because pharmaceutical companies don’t want their products used to kill people.