After Sixth Circuit panel approves (resoundingly) Ohio's execution protocol, will state now seek to restart its machinery of death?

As reported in this post from February, Ohio Gov Mike DeWine put a long list of scheduled executions on hold after a lower court had ruled that "it is certain or very likely" that the state's reliance on the drug midazolam in its eceuction protocol "cannot reduce consciousness to the level at which a condemned inmate will not experience the severe pain associated with injection of the paralytic drug or potassium chloride."  Ironically, the Ohio death row defendant, Warren Keith Henness, appealed the district court's decision because it ultimately denied his request for a stay of execution. 

That appeal has not been resolved by  a Sixth Circuit panel in In re Ohio Execution Protocol Litigation, No. 19-3064 (6th Cir. Sept 11, 2019) (available here), and the panel opinion seem almost to be urging Ohio to get it machinery of death up and running again.  Here are extended excepts providing context for, and content from, this short ruling:

In Glossip, the Supreme Court held that, to demonstrate a likelihood of success on the merits of an Eighth Amendment challenge to a state’s method of execution, the plaintiff must: (1) show that the intended method of execution is “sure or very likely to cause serious illness and needless suffering,” and (2) “identify an alternative [method] that is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain.” Id. at 2737 (citations, brackets, internal quotations, and original emphasis omitted).

Applying this framework, the district court found that Henness met his burden on Glossip’s first prong but failed to propose a viable alternative method of execution as required by the second. We review each prong separately....

We disagree [with the district court's conclusion on the first Glossip prong].  As an initial matter, neither pulmonary edema nor the symptoms associated with it qualify as the type of serious pain prohibited by the Eighth Amendment.  Consider: midazolam may cause Henness to suffocate.  But the Eighth Amendment only prohibits forms of punishment that seek to intensify an inmate’s death by “superadd[ing]” feelings of “terror, pain, or disgrace.”  Bucklew v. Precythe, 139 S. Ct. 1112, 1124 (2019) (citations and internal quotation marks omitted). Consistent with this understanding, the Supreme Court recently reasoned that the fact that an inmate sentenced to death by hanging might slowly suffocate to death is not constitutionally problematic.  Id.  Because suffocation does not qualify as “severe pain and needless suffering,” it follows that Ohio’s use of midazolam — which could cause pulmonary edema, i.e., suffocation — is not constitutionally inappropriate.  The district court therefore clearly erred in concluding to the contrary.

Further, the district court erred in finding that Henness met his burden of proving that midazolam is incapable of suppressing his consciousness enough to prevent him from experiencing — at a constitutionally problematic level — the pain caused by the combination of the paralytic agent and potassium chloride.  Indeed, though we have concluded that the combination of those two substances “would cause severe pain to a person who is fully conscious,” we have also recognized that midazolam is capable of altering an inmate’s ability to subjectively experience pain.  See Fears, 860 F.3d at 886, 888 (noting that “experts . . . agree[] that midazolam is sometimes used alone for intubation”). That said, the relevant inquiry is whether an inmate injected with 500 milligrams of midazolam would subjectively experience unconstitutionally severe pain — an inquiry that Henness has failed to prove should be answered in his favor.  To be sure, the bulk of Henness’s evidence focuses on the fact that midazolam is incapable of rendering an inmate insensate to pain.  But “the Eighth Amendment does not guarantee a prisoner a painless death,” so it is immaterial whether the inmate will experience some pain — as noted, the question is whether the level of pain the inmate subjectively experiences is constitutionally excessive.  See Bucklew, 139 S. Ct. at 1124.  And the fact that midazolam may not prevent an inmate from experiencing pain is irrelevant to whether the pain the inmate might experience is unconstitutional. Without evidence showing that a person deeply sedated by a 500 milligram dose of midazolam is still “sure or very likely” to experience an unconstitutionally high level of pain, Henness has not met his burden on this prong, and the district court clearly erred in concluding otherwise....

But even if we were to agree with Henness that Ohio’s method of execution is very likely to cause either of the types of severe pain identified by Henness and the district court, we would still find that Henness has failed to carry his burden under Glossip’s second prong.  This is because Henness’s proposed alternative method — death by secobarbital — is not a viable alternative.  As an initial matter, the record demonstrates that death by secobarbital is not “feasible” because secobarbital can, in some instances, take days to cause death and Henness has failed to propose any procedures detailing how an execution team might deal with such a prolonged execution.  Setting that deficiency aside, Henness’s proposal still fails.  As the Supreme Court recently explained, a state may decline to utilize an alternative method of execution — even if it is otherwise feasible and capable of being readily implemented — so long as the state has a legitimate reason for doing so, and “choosing not to be the first [state] to experiment with a new method of execution is a legitimate reason to reject it.” Bucklew, 139 S. Ct. at 1128-30 (internal quotation marks omitted).  It follows that, because no other state uses secobarbital to carry out an execution, Ohio may decline to implement it.

As a final point, we note that Henness’s last-minute motion to dismiss on mootness and ripeness grounds is without merit. Contrary to his contentions, Ohio has said that it intends to resume executions with this protocol if we approve. See, e.g., Andrew J. Tobias, Gov. Mike DeWine Freezes All Ohio Executions While New Method Developed, Cleveland.com (February 19, 2019), https://perma.cc/2HUL-HBUG (last accessed August 9, 2019). Thus, his challenge is not moot.  And his challenge is ripe — notwithstanding the fact that his execution has been delayed.

In other words, it seems that the Sixth Circuit panel here clearly credits the death row defendant's contention that Ohio's use of midazolam in its lethal injection protocol "may cause Henness to suffocate" and seems to credit the claim that he "will experience some pain."  But, according to the panel, it is fully constitution circa 2019 for the state to opt to "slowly suffocate to death" a condemned defendant as long as that defendant is not "sure or very likely to experience an unconstitutionally high level of pain."  

I am certain that the defendant here will now appeal this matter to the en banc Sixth Circuit and also the Supreme Court, but I will be surprised if this appeal gets heard in full again.  (I will predict here that at least a few Sixth Circuit judges will dissent if and when the full circuit does not take up the case.)  Consequently, I think the fate of Warren Keith Henness and a long list of condemned with execution dates in Ohio now turns on what whether and when Governor DeWine is prepared to order the state's machinery of death to become operational again.

A few (of many) prior recent related posts:

• New Ohio Gov puts halt to all executions until Ohio develops new execution method 
• Ohio's new governor delays first scheduled execution under his watch based on concerns about lethal-injection drugs
• Highlighting, though Ohio's remarkable recent experience, a possible tipping point on midazolam as a lethal injection drug 
• Ohio Governor officially postpones three more scheduled executions 
• Reviewing Ohio's (now-suspended) execution realities
• Ohio officials apparently seeking to avoid any paper trail as it tries to reboot its machinery of death
• Struggling with an execution protocol, Ohio Gov DeWine delays execution scheduled for Sept 2019 to May 2020