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June 28, 2017

En banc Sixth Circuit reverses preliminary injunction that had been preventing Ohio from moving forward with executions

Unsurprisingly, the en banc Sixth Circuit today ruled for the State of Ohio in its appeal of a lower court stay issued earlier this year which blocked Ohio from using its latest three-drug protocol to execute condemned murderers.  Here is how the majority opinion (per Judge Kethledge, who wrote the dissent in the original panel ruling) in  In re: Ohio Execution Protocol, No. 17-3076 (6th Cir. June 28, 2017) (available here) gets started:

Roughly two decades have passed since the plaintiffs in this case murdered their victims. Ronald Phillips raped a three-year-old girl and beat her so badly that her internal organs ruptured. For two days she suffered intense abdominal pain and vomiting, until her heart collapsed. See State v. Phillips, 656 N.E.2d 643, 650-52 (Ohio 1995).  Gary Otte entered the home of an Ohio man, robbed him, and then shot him in the head.  Two nights later, Otte pushed his way into a woman’s home and did the same things to her. After each murder Otte went out partying. See State v. Otte, 660 N.E.2d 711, 715-16 (Ohio 1996).  Raymond Tibbetts killed an elderly man and his caretaker. Police found the man slumped in his chair with butcher knives protruding from his chest and back.  His caretaker lay on the floor in a pool of blood with her skull cracked open and its contents scattered nearby. See State v. Tibbetts, 749 N.E.2d 226, 237-39 (Ohio 2001).

Phillips, Otte, and Tibbetts now claim that Ohio’s Execution Protocol would cause them to suffer severe pain in violation of the Eighth Amendment.  In a sense the claim is unprecedented: the Supreme Court “has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.” Glossip v. Gross, 135 S. Ct. 2726, 2732 (2015) (internal quotation marks omitted). The State’s chosen procedure here is the same procedure (so far as the combination of drugs is concerned) that the Supreme Court upheld in Glossip.  Every other court of appeals to consider that procedure has likewise upheld it, including most recently the Eighth Circuit, which rejected a nearly identical challenge in a procedural posture identical to the one here.  See McGehee v. Hutchinson, 854 F.3d 488, 492 (8th Cir. 2017) (en banc) (per curiam), cert. denied, 137 S. Ct. 1275 (2017); Glossip, 135 S. Ct. at 2739-40 (collecting cases); Brooks v. Warden, 810 F.3d 812, 818-22 (11th Cir. 2016); cf. Jordan v. Fisher, 823 F.3d 805, 811-12 (5th Cir. 2016).  Yet here the district court thought the same procedure is likely invalid.  We respectfully disagree and reverse the court’s grant of a preliminary injunction.

The chief dissent was penned by Judge Moore (who wrote the majority decision for the original panel upholding the stay).  This dissent runs about twice as long as the majority opinion, and it gets started this way:

There is a narrow question before this court: Should Gary Otte, Ronald Phillips, and Raymond Tibbetts have a trial on their claim that Ohio’s execution protocol is a cruel and unusual punishment, or should Ohio execute them without such a trial?  The majority has concluded that there is no need for a trial on the merits of Plaintiffs’ constitutional claim. I disagree.

There is no dispute that the second and third drugs in Ohio’s execution protocol cause immense pain.  There is significant evidence that the first drug, midazolam, cannot prevent someone from feeling that pain.  After a five-day hearing on Plaintiffs’ motion for a preliminary injunction, the district court determined that there should be a full trial on the merits of Plaintiffs’ claim that Ohio’s use of midazolam as the first drug in a three-drug execution protocol creates a constitutionally unacceptable risk of pain. Despite the deferential standard of review that this court should apply, the majority casts aside the district court’s determination that Plaintiffs should have a trial before the state executes them.  The majority also determines that despite Defendants’ unequivocal sworn testimony that they would no longer use pancuronium bromide or potassium chloride in executions, judicial estoppel does not prevent their renewed attempt to use those drugs. For the reasons discussed below, I would hold that Plaintiffs should have a trial on their Eighth Amendment and judicial-estoppel claims, and I respectfully dissent.

This Ohio DRC execution page details that Ohio is scheduled to execute Ronald Phillips on July 26 and has scheduled executions for more than two dozen other Ohio inmates running all the way through 2020. This Sixth Circuit will surely be appealed by Phillips to the US Supreme Court in the coming weeks, but I would be very surprised if SCOTUS takes up the case after it has recently allowed other midazolam executions to go forward. And if Ohio is able to to complete executions uneventfully with its current protocol, the state could now be on a path to having more executions in the next few years than perhaps any other state in the nation.

June 28, 2017 at 01:26 PM | Permalink


I don't know if the facts are there in this specific case to carry the dissent's position but the concurring dissent that speaks of a national conversation is well said.

Posted by: Joe | Jun 28, 2017 8:15:59 PM

Typical Sixth Circuit en banc outcome in a death penalty case -- All Republican-appointed Judges vote in favor of the state -- All Democrat-appoint judges vote in favor of the accused.

Posted by: ? | Jun 28, 2017 10:26:23 PM

Joe, the latest formal statement in the national conversation all were in favor of the death penalty via initiative votes in Oklahoma, Nebraska and deep blue California.

Posted by: Doug B. | Jun 28, 2017 11:27:23 PM

Reflection of the national conversation is ill-served by referenda in three states out of fifty.

Posted by: peter | Jun 29, 2017 5:56:33 AM

So very proud of Ohio: joining Texas and Florida in killing lots of folks.

Posted by: anon1 | Jun 29, 2017 6:45:11 AM

"Joe, the latest formal statement in the national conversation all were in favor of the death penalty via initiative votes in Oklahoma, Nebraska and deep blue California."

The national conversation includes more than a few initiative votes. The votes don't say much more than a general conclusion that some voting majority supports the idea of the death penalty as a general concept.

As seen by the fact the death penalty is only actually applied a few places, even though it is on the books in other places, that doesn't tell the whole story. The national conversation also includes repeat concern that, yes, the death penalty should be in place, but it has various problems, and we are very concerned about them.

Various people are involved in handling said problems, including judges, who are informed by public understanding, but also have to apply it using general rules above simple democratic votes. Sorry to write so much but your bald statement is misleading.

Posted by: Joe | Jun 29, 2017 9:48:39 AM

"deep blue California"

Continuing the "this is complicated" account, California is a very populous state and had a large death row population though nearly no one was executed.

Democrats are divided on the death penalty, and the last two people on the November ballot supported it for various crimes. 56% of CA weren't registered Democrats by one 2012 breakdown (Wikipedia) So, after functional abolition for so long, CA voters decided to vote to streamline the procedures to some degree while still being assured there were some. This still has to pass court review, another check the voters knew about.

The final result was that 51% supported this. [Ballotpedia] I'm rather sure some of these were very concerned about protections and support strong court review and are not railing against those abroad blocking supply of lethal injection drugs.

The need to go to an initiative in Nebraska after a legislative repeal underlines the split there. In a strong red state. Oklahoma voters as I noted simply accepted the death penalty should be allowed unless found to be in violation of the U.S. Constitution. The complications of application continue.

Again, we can simply be brief. Maybe "it's more complicated than that, Doug."

Posted by: Joe | Jun 29, 2017 10:05:09 AM

Enjoy, DAB

Posted by: anon | Jun 29, 2017 12:54:28 PM

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