Originally published March 3, 2019 at midnight, updated March 11, 2019 at 3:56 p.m.
In late January, Ohio’s newly-elected governor, Mike DeWine, granted a six-month reprieve to Warren Keith Henness. Recently, DeWine halted all executions in the state until the Department of Rehabilitation and Correction is able to develop a new execution protocol approved by the courts. Ohio joins Pennsylvania and six other states with some sort of formal hold on executions.
DeWine’s “moratorium” on executions comes in response to Dayton Federal Magistrate Judge Michael Merz’s opinion suggesting the state’s current three-drug execution protocol is a combination of “waterboarding and a chemical fire.”
“If Ohio executes Warren Henness under its present protocol, it will almost certainly subject him to severe pain and needless suffering ... enough to constitute cruel and unusual punishment,” wrote Judge Merz.
He did not stop Henness’ execution but De- Wine, who sponsored Ohio’s capital punishment law as a state senator in 1981 and later represented the state in death-penalty cases as attorney general, did.
This is not Judge Merz’s first shot at Ohio’s death penalty. Two years ago, he ruled that there was a “substantial risk of serious harm” in using midazolam, a sedative for executions. He granted an injunction blocking all executions.
A three-judge panel of the 6th U.S. Circuit Court of Appeals ruled 2-1 to uphold the injunction. The panel also barred the use of any protocol that contained potassium chloride, which stops the heart, and any drug that acts as a paralytic agent.
The case returned to the 6th Circuit to be heard en banc – all of the judges would rehear the case. This time, in an 8-6 ruling the 6th Circuit rejected Merz’s injunction.
Twice in two years Judge Merz found lethal injection in Ohio violated the Eighth Amendment’s ban on cruel and unusual punishment. This is in spite of a 2008 U.S. Supreme Court decision out of Kentucky that ruled lethal injection was not cruel and unusual punishment. In fact, the Supreme Court has never found a method of execution to be cruel and unusual. That list includes hanging, firing squad, electric chair and gas chamber.
This latest twist in Ohio’s death-penalty saga is in stark contrast to the state’s recent history with the death penalty. Between 2009 and 2011, Ohio carried out 17 executions second only to Texas, a state that has carried out more executions than the other top five states combined.
Four of those 17 men executed – Jason Getsy, Kenneth Biros, Mark Brown and Roderick Davies – were from either Trumbull or Mahoning counties.
There is real concern about Ohio’s death chamber. The state has had its share of executions gone awry.
In 2009, Romell Broom was scheduled to be executed. Corrections officials tried for two hours to maintain an IV for injecting the lethal drugs, reported the Washington Post. Finally, Ohio Gov. Ted Strickland intervened. Broom survived his execution and remains on death row today.
In 2014, Ohio became the first state in the nation to use a new and untried lethal-injection protocol involving midazolam and hydromorphone, a sedative and morphine derivative.
It did not go well. Convicted killer Dennis McGuire took 25 minutes to die. Prior executions took about 12 to 15 minutes. McGurie appeared to gasp several times during the execution, according to the Cleveland Plain Dealer.
He made several loud snorting or snoring sounds during the time it took him to die. It was one of the long- est executions since Ohio resumed capital punishment in 1999, reported the Associated Press.
In November of 2017, 69-year-old Alva Campbell was scheduled to die by lethal injection. Campbell’s attorney said he watched as his client was stuck with needles four times in different parts of his body, and cried out in pain.
After about 25 minutes, Ohio Gov. John Kasich halted the execution, reported NBC News. For the second time in less than 10 years a condemned inmate in Ohio survived his execution. Campbell died of natural causes three months later.
DeWine did not say when he expects executions to resume, “[a]s long as the status quo remains, where we don’t have a protocol that has been found to be OK, we certainly cannot have any executions in Ohio.”
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com