COLUMBUS, Ohio — In late January when Ohio Republican Governor Mike DeWine halted all executions statewide, Ohio inadvertently joined a growing list of states that are reexamining capital punishment.
Currently, eight states have official holds on all executions. Half of these states, Arizona Louisiana, Montana, and Oklahoma were halted as the result of a court order. The other half, Colorado, Oregon, Pennsylvania, and now Ohio have had moratoriums on executions imposed by their respective governors. When these states are combined with the twenty states that have outlawed capital punishment, for the first time in decades, a majority of the states in the Union are not currently practicing the death penalty.
While reasons vary as to why each of the eight states placed their respective holds on capital punishment, the overwhelming majority had one thing in common: complications with drugs used in lethal injections – most notably Midazolam. Most of the drugs that are commonly used in lethal injections are high doses of routinely prescribed drugs. Midazolam is used in countless medical procedures, mostly surgical. In 2013, states began using the anesthesia as the first part of a three-drug cocktail in lethal injections across the country. The drug has now been linked to numerous instances of botched or extremely painful executions. In 2015, a group of inmates appealed to the Supreme Court to have the drug banned for violating the eighth amendment; arguing that its use constituted “cruel and unusual punishment.” The court ruled against the inmates with Justice Alito stating in the majority opinion:
First, the prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-of execution claims. … Second, the District Court did not commit clear error when it found that the prisoners failed to establish that Oklahoma’s use of a massive dose of Midazolam in its execution protocol entails a substantial risk of severe pain.
Despite his decision, Ohio Governor Mike DeWine placed a halt on all executions specifically due to the use of Midazolam, directly contradicting the judge by stating:
…the Court heard extensive evidence that Midazolam was not achieving the intended result of blocking the severe pain caused by the second and third drugs…we have good evidence that Midazolam will cause the ‘waterboarding’ effects of pulmonary edema. If Ohio executes Warren Hennes under its present protocol, it will almost certainly subject him to severe pain and needless suffering. Reading the plain language of the Eighth Amendment, that should be enough to constitute cruel and unusual punishment.
With lethal injection called into question, and no viable alternative to replace it, short of using more antiquated practices like the electric chair (which several states still maintain as an option), the future of the death penalty is uncertain.
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Andrew Shirley is a reporter at Battleground State News and The Ohio Star. Send tips to [email protected].
