Mike DeWine postponed the execution of Warren Henness last month. Then, last week, the governor went further in pressing for a death penalty protocol that meets the standard set by the federal courts — and complies with the spirit and letter of state law. He told an Associated Press forum in Columbus: “As long as the status quo remains, where we don’t have a protocol that has been found to be OK, we certainly cannot have any executions in Ohio.”
So, in all likelihood, the state won’t go forward with scheduled lethal injections for May and August, or the Henness execution reset for September. The governor rightly appears willing to see the federal court perform its job. As Magistrate Judge Michael Merz explained in a scheduling order, the governor’s decision amounts to “excellent public policy.”
The federal court has been trying for years to set a legal path forward for the death penalty in the state. Yet it has been hard to gain traction in view of the state continuing to schedule executions, each receiving attention from the court under the pressure of time. The governor’s action, as the magistrate judge noted, allows the court to proceed deliberately, the state devising a new protocol and then the court weighing its constitutionality.
What’s wrong with the state’s three-step lethal injection process? As Magistrate Judge Merz made plain in a December ruling concerning the Henness case, the protocol falls short of the state’s requirement for a “quick and painless” death and collides with the constitutional ban on “cruel and unusual punishments.”
The problem involves the first step, or the sedative midazolam. The evidence indicates that the drug fails to reduce consciousness enough. Thus, when the next two drugs, a paralytic and then potassium chloride to stop the heart, are applied, the prisoner faces severe pain, “as though fire was being poured” through his veins, in the view of the magistrate judge.
More, the evidence points to the massive dose of midazolam causing pulmonary edema, an excess of fluid in the lungs. The result for the prisoner is pain and a sense of drowning, all of it, according to the magistrate judge, the equivalent of waterboarding, or torture, which the country has declared unacceptable and inhumane by treaty and law. Again, this isn't about the awful killings committed. It involves how the state chooses to take a life in the name of Ohioans.
The state has resorted to this protocol because it no longer can obtain the powerful barbiturates used successfully in earlier executions. For legal and moral reasons, drug manufacturers have barred access. So, Ohio and other states have been left to scramble and have yet to find an adequate substitute.
At the AP forum, the governor stated flatly, “Ohio is not going to execute someone under my watch when a federal judge has found it to be cruel and unusual punishment.” The governor proved revealing in another way when asked whether he supports the death penalty. He recalled that as a state lawmaker, he sponsored the current law governing capital punishment. He added carefully: “It is the law of the state of Ohio. And I’ll let it go at this point. We are seeing clearly some challenges … in regard to carrying out the death penalty.”
In choosing not to discuss further the subject, the governor suggested much. The moment isn’t just right for the federal court to conduct a full examination of lethal injection. It is timely, too, to take up the value and practicality of capital punishment, especially with the option of life in prison without parole. That is what lingers in what the governor didn’t say.