Federal Judge rejects Ohio’s Lethal Injection Procedure: An Ongoing Constitutional Question

By Natasha Darlington

Natasha Darlington is a third year at the University of Warwick studying Law.


Executions due to take place in the coming months have been delayed in Ohio when on January 26, 2017, a federal judge ruled that the state’s new lethal injection process was unconstitutional. The ruling by Magistrate Judge Michael Merz was in regards to a three-drug method, which the state planned to use on February 15 on Ronald Phillips.

Within his judgment, Merz argued that the first drug in the procedure couldn’t pass the rule of causing ‘substantial risk of serious harm,’ as well as blocking the state from using the second and third drugs within the protocol, which paralyze and stop the condemned person’s heart. [1] Further compounding the issue regarding the method of execution, it must be stated that executions in Ohio have been halted since January 2014 when it took Dennis McGuire 26 minutes to die, which was the longest execution in the state since 1999. [2] Thus, in using the three-drug protocol, it would be ‘completely inconsistent with the position’ that the state took when declaring they would no longer use such a procedure in executions. [3]


Whilst, the State of Ohio has appealed to the 6th U.S. Circuit Court of Appeals in Cincinnati, in light of the recent ruling, it is important to analyze the spectrum of issues surrounding the procedures including supply of drugs as states seek alternatives and whether such alternatives still violate what constitutes a ‘cruel and unusual punishment,’ according to the Eighth Amendment of the US Constitution. [4]


Supreme Court ruling of cases


For the last couple of decades, the issues surrounding the method of execution in capital punishment cases have been litigated in various courts across the United States, with notable decisions providing legal precedents that inform those who aim to challenge a procedure which may be used by the state.


In Baze v Rees, the Supreme Court listened to arguments relating to whether a particular three-drug lethal injection challenged the Eighth Amendment. [5] In the decision, the justices confirmed that, in order for a claim to prevail, the petitioner must establish that a state’s method of execution would present an ‘objectively intolerable risk of harm,’ as well as demonstrating the existence of a feasible alternative. [6]


Following this decision, in Glossip v Gross, the Supreme Court affirmed a decision by the Tenth Circuit by finding that the petitioners had failed to establish that the use of midazolam would violate the Eighth Amendment. [7] Thus, the petitioner’s would be denied their claim against Oklahoma’s lethal injection protocol. According to Justice Alito, the petitioner’s had failed to establish that ‘the risk of harm was substantial when compared to known and available alternative methods of execution.’ [8]


In addition, Justice Alito affirmed the decision of the district court in that midazolam was highly likely ‘to render a person unable to feel pain during execution.’ [9] Therefore, the petitioner’s failure to satisfy these provisions can be said to have ‘further entrenched a rigid approach’ to providing proof that the particular actions of a state ought to be halted. [10]


Alternative issues


Whilst the U.S. Supreme Court has tackled the question of constitutionality regarding the lethal injection, litigation continues, which not only poses a myriad of legal issues, but also depends on the understanding of the the economic and medical implications of the protocols used by individual states.


A number of courts at the state level have judged methods of executions, including a Tennessee district court in Harbison v Little where the judges found the state’s revised protocol unconstitutional. [11] This case posed similar questions that Judge Merz has regarding the revised protocol in Ohio. Often, courts will try and establish whether alternatives can exist which would not present the same substantial risk of unnecessary pain.


Thus, a continuing issue that is of importance are the alternatives that exist to replace lethal injection protocols that are either ruled unconstitutional by the courts or are more difficult to obtain since multiple pharmaceutical companies have already announced their intentions to stop selling drugs which have been used for death penalty purposes. In 2016, more than twenty American and European drug companies affirmed that they would impose ‘sweeping controls on the distribution of its products,’ thus; these increasing difficulties to obtain certain drugs mean that states are in the pursuit of alternative solutions to methods of execution. [12]


What can the recent judgment in Ohio mean?


It may be difficult to infer what the ruling given by Judge Merz might mean for future litigation; however, it is clear that it is another example of a case whereby the petitioner’s have identified an alternative method of execution which would entail a lesser degree of pain.


However,  the decision could bring more death row inmates to argue against their state’s method of execution, claiming as violating the Eighth Amendment on grounds of substantial risk of harm, but also, it is certain that states will have to rethink and revise their protocol measures in order to ensure they are in conformity with constitutional requirements.


Whilst this judgment allows us to ponder upon the various methods of execution and which may be regarded more constitutional than others, it also seems to highlight the continuing ‘search for a medically humane execution.’ [13] It is questionable whether there can be a humane way to take away a life, as reinforced by Justice Breyer who argued that, ‘if there is no method of executing a person that does not cause unacceptable pain, this might show that the death penalty is not consistent with the Eighth Amendment.’ [14] Such rhetoric can lead to deeper assessment vis-à-vis the broader question of the abolition of the death penalty in the United States.







[1] “Federal Judge: Ohio’s 3 –drug death penalty cocktail poses ‘substantial risk of serious harm.” Death Penalty News BlogSpot. Accessed February 15, 2017.
https://deathpenaltynews.blogspot.fr/2017/01/federal-judge-ohios-3-drug-death.html

[2] Owen, Tess, “Executions halted. The lethal injection drugs that sparked national debate were just ruled unconstitutional in Ohio.” Vice News. Accessed February 14, 2017.
https://news.vice.com/story/ohio-executions-halted-as-common-lethal-injection-drugs-are-ruled-unconstitutional

[3] Palmer, Kim, “Federal judge rejects Ohio’s new lethal injection process, stays executions.” Reuters News. Accessed February 12, 2017.
http://www.reuters.com/article/us-ohio-execution-idUSKBN15A25Y

[4] Stevenson, Bryan A and Stinneford, John F, “The Eighth Amendment.” Constitution Center. Accessed February 16, 2017.
https://constitutioncenter.org/interactive-constitution/amendments/amendment-viii

[5] Baze v Rees, 553 U.S. 35 (2008).
[6] ibid, at 50.

[7] Glossip v Gross, 135 S.Ct. 2726 (2015).

[8] ibid, at 2737.

[9] ibid, at 2739-40.

[10] “Eighth Amendment –Death Penalty - Preliminary Injunctions – Glossip v Gross,” Harvard Law Review, 129 Issue 1 (November 2015) 271-280

[11] Harbison v Little, 511 F. Supp. 2d 872 (M.D. Tenn. 2007)

[12] Eckholm, Erik, “Pfizer blocks the use of its drugs in executions.” The New York Times. Accessed February 14, 2017.
https://www.nytimes.com/2016/05/14/us/pfizer-execution-drugs-lethal-injection.html?_r=0

[13] Denno, Deborah W. “The Lethal Injection Quandary: How medicine has dismantled the death penalty.” Fordham Law Review, 76 (2007): 49-128

[14] Glossip v Gross 576 U.S. 31 (2015)



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