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January 26, 2017

Federal magistrate judge rules Ohio's new 3-drug lethal injection protocol is unconstitutional and blocks coming scheduled executions

As reported in this local piece, a "federal magistrate judge on Thursday barred the use of a three-drug cocktail the state of Ohio planned to use to execute death-row inmates, declaring the method the state prefers to be unconstitutional." Here is more about the opinion:

Magistrate Judge David Merz of Dayton also halted the executions of three inmates scheduled to be executed in the coming months, two of which came from Northeast Ohio. 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 three-drug protocol will create a 'substantial risk of serious harm' or an 'objectively intolerable risk of harm' as required by (Supreme Court precedent)," Merz wrote.

The ruling is a success for the inmates challenging Ohio's execution protocols and anti-death-penalty advocates who have sought to chip away at the state's ability to execute people since executions resumed in 1999. It may be short lived, though, as the ruling is all but guaranteed to be appealed. A spokeswoman for Ohio Attorney General Mike DeWine's office said the office is reviewing the decision.

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 a cocktail that included 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 last October. The challenge that led to Merz's ruling Thursday was also borne out of McGuire's execution. During a hearing earlier this month, Merz heard testimony on all three drugs. His ruling Thursday said that 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....

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 for killing people. In 2014, state lawmakers passed a secrecy law hoping to encourage small-scale drug manufacturers called compounding pharmacies to make its lethal-injection drugs. That law was challenged, though courts have declined to declare the law unconstitutional.

The full 199-page opinion In re Ohio Execution Protocol Litigation, No. 2:11-cv-1016 (S.D. Ohio Jan 26, 2017), is available at this link.  I have an inkling that the state of Ohio may get around to appealing the decision even before I get around to reading it in full because the state likely is eager to preserve the scheduled Feb 15 execution date for child murderer Ronald Phillips.

January 26, 2017 at 01:32 PM | Permalink

Comments

Would be nice if Sessions put on his radar to get states certified for expedited federal habeas remedies. Yes, this is 1983, but the stay bar should apply here as well.

Posted by: federalist | Jan 26, 2017 2:00:57 PM

This amount (by various sides) of verbiage always amazes me.

Posted by: Joe | Jan 26, 2017 3:48:40 PM

"His ruling Thursday said that 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"

Unadulterated horsehocky.

Posted by: federalist | Jan 26, 2017 4:49:41 PM

Is this magistrate a lawyer? Dismissed.

Self dealing, rent seeking ipse dixit, with no validation.

Ignore him.

Posted by: David Behar | Jan 26, 2017 6:07:26 PM

I am amazed that any state would agree to having something like this heard by a magistrate (at least as I understand it one requirement for magistrate jurisdiction is agreement by the parties, otherwise it has to go to an actual art. 3 judge. Am I wrong on that?).

Posted by: Soronel Haetir | Jan 26, 2017 6:42:55 PM

This is outrageous! I bought a new pair of knitting needles for the occasion. Drats!

Posted by: Madam DeFarge | Jan 26, 2017 7:44:13 PM

Soronel, I can understand how it happens. It depends upon the magistrate to which the case is assigned and the judges available if the State opts to exercise its right to a district judge. In five years of doing federal habeas cases for the State, I can't think of a single time that we objected. There wasn't that big of a difference between our magistrate judges and our district judges, and -- frequently, when the other side objected -- the newly assigned district judge would refer it back to a magistrate for a report and recommendation.

Posted by: tmm | Jan 27, 2017 11:39:48 AM

Prof Berman, I'd humbling point out that your headline is factually incorrect. Nothing was ruled unconstitutional. As this decision was before the magistrate (who was assigned the case, and would have an issued a Report and Recommendation had he not been given plenary jurisdiction, thereby delaying the state's ability to take up this wholly unfounded decision up on appeal) on a motion for preliminary injunction, the holding was that plaintiff's had met their burden on showing a likelihood of success on the merits.

Posted by: Public Servant | Jan 27, 2017 2:11:07 PM

Everyone who is complaining about this ruling should know that Magistrate Judge Michael Merz is responsible for almost all of the denials of relief under 2254 in the Southern District of Ohio. Almost every execution out of the Southern District of Ohio can be traced back to Merz. Who, by the way is on "recall" status as a magistrate judge. That might explain why the Attorney General of Ohio agreed to have Merz hear the case.

Posted by: ? | Jan 27, 2017 7:46:39 PM

tmm,

OK, I was not aware that even when a party opts for the Art. 3 judge that the judge has the option of farming out the work.

Posted by: Soronel Haetir | Jan 28, 2017 2:26:16 AM

Soronel, unfortunately the statute only permits a party to decline to consent to magistrate having the final decision. If a party does decline consent and the case gets reassigned back to a district judge, nothing in the provisions of Section 636 governing the powers of magistrate judges prevents the district judge who gets the case after such a reassignment from opting to use a magistrate for the preliminary stages including a report and recommendation on the merits.

Posted by: tmm | Jan 28, 2017 9:43:40 PM

Soronel, unfortunately the statute only permits a party to decline to consent to magistrate having the final decision. If a party does decline consent and the case gets reassigned back to a district judge, nothing in the provisions of Section 636 governing the powers of magistrate judges prevents the district judge who gets the case after such a reassignment from opting to use a magistrate for the preliminary stages including a report and recommendation on the merits.

Posted by: tmm | Jan 28, 2017 9:43:40 PM

I have proposed that the executive branch ignore a federal court order about the cruelty of the death penalty. Proceed with the kindly drug cocktail. If it infused into tissue and not so much into vein, and is taking too long, shoot the condemned in the head at close range.

Trump is having ICE do that with the orders of four federal courts to enjoin and restrain his order to exclude Muslim immigrants from Muslim nations without a Trump Hotel. Border agents are enthusiastically cheering his fearless leadership, in the face of massive protests by tax sucking parasites and Soros paid, professional protesters.

http://nypost.com/2017/01/29/customs-agents-ignore-judge-enforce-trumps-travel-ban-aclu/

This practice began with Andrew Jackson, defying the order of the out of control, lawyer traitor, John Marshall. (https://en.wikipedia.org/wiki/Worcester_v._Georgia).

The states have more authority to ignore federal courts than the President to do so. Both the President, and the federal courts are their agents, not the other way around.

Posted by: David Behar | Jan 29, 2017 3:29:54 PM

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