« Will the FIRST STEP Act's crack retroactivity provisions result in many reduced sentences beyond those serving mandatory-minimum terms? | Main | "Limiting Retributivism and Individual Prevention" »

January 25, 2019

Ohio's new governor delays first scheduled execution under his watch based on concerns about lethal-injection drugs

As reported in this local article, headlined "Gov. Mike DeWine delays killer’s execution, orders review of lethal-injection drugs," this afternoon brought some interesting news on the capital administration front from Ohio's capital. Here are the details:

Gov. Mike DeWine on Friday postponed the execution of murderer Warren Henness from Feb. 13 to Sept. 12 following a recent judicial ruling that Ohio’s lethal-injection cocktail will “very likely cause him severe pain and needless suffering.”  In a release, DeWine said that he has also directed Ohio’s prisons agency to assess the state’s current options for execution drugs and examine possible alternative drugs.

On Jan. 15, federal magistrate judge Michael Merz ruled that the three drugs Ohio has used since last year for executions — midazolam (as a sedative), a paralytic drug, and potassium chloride (to stop the heart) — are likely unconstitutionally “cruel and unusual punishment.” Merz cited testimony from medical witnesses that high doses of midazolam and other drugs cause pulmonary edema, causing a painful drowning sensation comparable to the torture tactic of waterboarding.

However, Merz allowed Henness’ execution to proceed because, under a 2015 U.S. Supreme Court ruling, death row inmates challenging how they will be put to death must show that an alternative means of execution is “available,” “feasible,” and can be “readily implemented.”

Henness’ proposed alternatives -- drinking secobarbital in a sweet liquid such as apple juice, or an oral injection of four drugs – were rejected by Merz on the grounds that neither method has ever been used to carry out an execution, they would take more than an hour to kill Henness, and that there isn’t a proven way to obtain the drugs.

DeWine, in his statement, noted that Henness has appealed Merz’s ruling, but the governor said he delayed the execution because of the magistrate judge’s opinion.

David Stebbins, Henness’ attorney, said in a statement Friday: “We commend Governor DeWine for his leadership and for ensuring the justice system operates humanely in Ohio.”

Henness was convicted of murdering his drug-abuse counselor, Richard Myers, in 1992.  Prosecutors said Henness kidnapped Myers, shot him five times at an abandoned water-treatment plant, severed Myers’ finger to get his wedding ring, then drove around in Myers’ car for several days forging his checks and using his credit cards to get cash and buy crack cocaine....

Ohio, like many other states with the death penalty, has struggled to obtain lethal-injection drugs since European pharmaceutical companies cut off further sales on moral and legal grounds.  After the controversial execution of killer Dennis McGuire in January 2014, Ohio imposed a three-year moratorium on executions as it worked to find a new lethal-injection protocol — and suppliers willing to sell the state the drugs.

Since the moratorium was lifted in 2017, Ohio has executed three people using the current three-drug cocktail — all without complications or unexpected problems with the drugs.  However, the execution of a fourth condemned inmate, Alva Campbell, was postponed after several unsuccessful attempts to insert an IV.  Campbell died in his cell a few months later.

January 25, 2019 at 05:31 PM | Permalink


what a wuss

Posted by: federalist | Jan 26, 2019 11:40:51 AM

Midazolam, 0r Versed, is a benzodiazepine (aka Benzos)

Did Judge Mertz mention:

1) how the inmate could feel the pain while unconscious? They can't. There is zero indication that the inmate could become conscious with the massive doses given. The pharmacological realities of the drugs are well known (1).

2)  that in 2013, an estimated 22 767 people died of an overdose involving prescription drugs in the United States.1 Benzodiazepines, a class of medications with sedative, hypnotic, anxiolytic, and anticonvulsant properties, were involved in approximately 31% of these fatal overdoses.1


3) The pain the judge mentions is pulmonary edema. Pulmonary edema caused by drug use is rare. The prevalence of opioid-related NCPE (noncardiogenic pulmonary edema) is about 2-10% of heroin overdoses [1,2]. It is most commonly seen in heroin (and morphine) overdose but has been reported with other opioids.

There are two theories that suggest the opioid antagonist naloxone is the cause of the NCPE. Obviously, naloxone is not used in executions.

If unconscious, pain cannot be felt.

4) Pathologist Dr. Mark Edgar has testified that in 85% of the executions with midazolam, pulmonary edema was present.

An attorney for the death row inmates "asked Edgar if an inmate put to death using pentobarbital or midazolam would feel pain from pulmonary edema, if the medication had not rendered the inmate unable to feel pain. Edgar said yes."

There is zero evidence the inmates were conscious and could feel pain.

5) that pulmonary distress and failure are well known side effects of the drugs, as is complete respiratory failure, as intended with massive intended execution overdoses (1).

6) Benzos are prescribed for anxiety and panic disorders, seizure disorders, sleep problems and insomnia, . . . All benzodiazepines depress the central nervous system by increasing the effects of the GABA neurotransmitter. This calms neural activity, leading to a sense of relaxation or sedation. Some people may experience euphoria or a pleasant sense of well-being.

Despite the fact that Versed is a fast-acting benzo with a short half-life, residual effects can be felt for a day or two after it’s used. For example, following a procedure involving Versed, a person could feel drowsy and weak for up to two days.  https://www.therecoveryvillage.com/versed-addiction/versed-alcohol/#gref

1) Rebuttal: Botched Executions

Posted by: Dudley Sharp | Jan 26, 2019 12:32:08 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB