Future Of Ohio's Death Penalty Hangs On Legality Of Midazolam

Jun 22, 2017

In 2014, Dennis McGuire of Montgomery County was executed. The process did not go as planned.

Witnesses reported McGuire struggled against his restraints and made choking noises before finally dying after 26 minutes, an unusually long time for that process.

No executions have happened in Ohio since, and the state has been caught in a protracted legal battle over which drugs can be used in executions. 

The latest chapter in that battle happened last week in the U.S. Sixth Circuit Court of Appeals in Cincinnati. The court heard arguments from the state and from Mark Haddad, a lawyer representing three death row inmates. 

A previous injunction from a lower court judge, halting the state's execution process, questioned the use of the drug midazolam. A three-judge panel of the Sixth Circuit Court upheld the injunction.

But in light of one judge's vehement dissent and an urging from Ohio Attorney General Mike Dewine's office, the full bench of the Sixth Circuit Court agreed to void the panel's decision and take up the case.

Doug Berman, professor at the Moritz College of Law at the Ohio State University, says that the question at the heart of the case has a lot of historical precedent.

"Whether it's firing squad, hanging, electrocution, guillotine ... though it's possible to make that painless, it seems like there's a chance if done improperly that there would be excruciating pain in the execution process," Berman says. "Lethal injection emerged and was adopted by every state including Ohio because of the belief, the hope, the desire to have a method that would be painless in carrying out a death sentence."

Whether midazolam ensures a painless death, though, is up for debate. Haddad argues that midazolam puts the prisoners at risk of cruel and unusual punishment, and the state could return to using a single overdose of pentobarbital.

Ohio is not the only one struggling with the legality of midazolam. Arkansas has also faced legal setbacks, including one in April from the U.S. Supreme Court, to carrying out its own executions.

And that means this case could have nationwide implications.