Ohio Seeks to Resume Executions in January of 2017

The state is back in federal court seeking to resume executions in Ohio. Ronald Phillips is set to be executed January 12, 2017, for the rape and murder of his girlfriend’s three year old daughter in 1993.

Ohio uses lethal injection as its method of execution. The last person to be put to death in Ohio by lethal injection was Dennis McGuire in January 2014. That did not go well. It took 26 minutes to execute McGuire, who reportedly repeatedly gasped and snorted with a then previously untried two-drug cocktail.

Drugs to execute people have been in short supply. In 2011, the European Union banned the export of commonly used execution drugs. The death penalty is outlawed in all EU member countries. In May of this year, drug company giant Pfizer restricted distribution of its products which could be used for this purpose.

Ohio has executions scheduled as far out as October 17, 2019. Earlier this year, Ohio Supreme Court Justice Paul Pfeifer criticized the court for setting this and other execution dates when the state had no drugs to carry out the executions.

Various media outlets have reported that in a hearing in federal court before U.S. District Judge Edmund Sargus on October 3, the state told the judge that it has updated its execution protocol, which will be announced at the end of the week. The state plans to use three drugs—midazolam, rocuronium bromide, and potassium chloride, as the lethal injection cocktail.  In June of 2015, in Glossip v. Gross  the U.S. Supreme Court held that the use of this combination of drugs in Oklahoma executions did not violate the Eighth Amendment ban on cruel and unusual punishment. It is not known where Ohio will get these drugs. Ohio state law allows the Department of Corrections to keep the source of lethal-injection drugs a secret. But the state told the judge at the hearing that the drugs would not come from a compounding company, some of which have had widely-reported major problems of their own.  Compounded drugs are not FDA approved.

The state of Ohio has been in federal court litigation over its lethal injection protocol for over a decade. U.S. District Court Judge Greg Frost, who presided over all of this litigation, has now retired.  It looks like Judge Sargus, who is currently Chief Judge in the Southern District of Ohio, has inherited these cases.  He must approve any new protocol.

As far as Ohio death penalty jurisprudence goes, anti-death penalty proponents are losing a key ally on Ohio’s high court with the age-mandated retirement of Justice Paul Pfeifer at year’s end. On January 18, 2011, at his last swearing-in ceremony as a justice, Pfeifer urged the governor to commute all death sentences to life without the possibility of parole.  He followed up with a guest column in the Cleveland Plain Dealer on January 26 in which he stated categorically that he believed the time had come for Ohio to abolish the death penalty. Before joining the court, Pfeifer was a member of the Ohio General Assembly. As a state senator in 1981, he helped craft the current law.

The other anti-death penalty justice on the Ohio high court is lone Democrat Bill O’Neill. O’Neill joined the court January 2, 2013, and wasted no time in making clear his opposition to the death penalty.  On January 25, 2013, he dissented from the order of execution in the case of State v. Wogenstahl, 2013-Ohio-164.  O’Neill wrote,

“While I recognize that capital punishment is the law of the land, I cannot participate in what I consider to be a violation of the Constitution I have sworn to uphold. I must respectfully dissent.”

O’Neill has voted against the imposition of the death penalty in every capital case since, and has dissented from orders setting execution dates.

Putting things in a broader context, Ohio still has recommendations from a Task Force that studied Ohio’s death penalty for more than two years. It released far-ranging findings in May of 2014. A copy of the report can be downloaded here.  Read more about what has happened to these recommendations here.

 

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