Campbell v. Kasich
881 F.3d 447
6th Cir.2018Background
- Raymond Tibbetts and Alva Campbell (death-row inmates) moved for preliminary injunctions to halt Ohio executions, challenging Ohio’s three-drug protocol that begins with 500 mg midazolam.
- They allege the protocol presents a constitutionally unacceptable risk that inmates will remain conscious and suffer extreme physical and psychological pain from the paralytic and potassium chloride.
- The district court, on remand from this court’s Fears decision, reviewed additional evidence (witness accounts, expert opinions) and denied injunctions, finding plaintiffs did not meet the required “sure or very likely” risk standard.
- Plaintiffs argued midazolam cannot induce general anesthesia, that administration timing prevents full effect before painful drugs, and pointed to observed movements, tearing, and breathing difficulty as evidence of pain.
- The district court (and this court on review) found plaintiffs’ evidence speculative or cumulative, noted lack of clinical data at the 500 mg dose, and held consciousness checks and monitoring practices did not establish a constitutional risk.
- Plaintiffs’ proposed alternative (omit paralytic + add physiological monitoring) was rejected as inconsistent with their claim that midazolam fails and as unsupported regarding feasibility and non‑medical interpretation of monitoring.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ohio’s midazolam-based protocol presents a risk "sure or very likely" to cause serious pain/needless suffering | Midazolam at 500 mg may not render inmates insensate; observed movements/tearing/air‑hunger show pain; psychological trauma compounds physical pain | State: evidence does not show midazolam likely fails; consciousness checks and prior findings indicate protocol prevents consciousness sufficient to feel severe pain | Plaintiffs failed to meet the heavy burden; district court findings not clearly erroneous; injunction denied |
| Whether psychological pain (absent physical pain) is cognizable under Eighth Amendment method‑of‑execution challenge | Psychological suffering from method should be considered | State: anticipatory psychological suffering inherent to death sentence is not a method‑specific Eighth Amendment basis | Court held psychological pain alone is not material; only psychological pain accompanying serious physical pain is relevant |
| Whether plaintiffs provided sufficient scientific proof about 500 mg midazolam’s effects | Experts opined midazolam lacks analgesia and cannot produce general anesthesia; lack of clinical data on 500 mg raises uncertainty that supports risk finding | State’s experts and prior precedent: lack of clinical data does not prove failure; 500 mg is far above clinical doses and consciousness checks support adequacy | Court concluded plaintiffs offered only speculation, not proof the drug is sure or very likely to leave inmates conscious enough to feel severe pain |
| Whether plaintiffs’ alternative (omit paralytic + added monitors) is feasible and would significantly reduce risk | Proposed monitoring and omission of paralytic would prevent hidden suffering and ensure midazolam effectiveness before KCl | State: proposal contradicts plaintiffs’ claim that midazolam fails; monitoring not shown to be readily interpreted by non‑medical execution personnel; not demonstrably feasible | Court rejected alternative as inconsistent, unsupported, and not a readily implementable method that significantly reduces risk |
Key Cases Cited
- Baze v. Rees, 553 U.S. 35 (2008) (established framework for Eighth Amendment method‑of‑execution challenges)
- Glossip v. Gross, 576 U.S. 863 (2015) (plaintiffs must identify an available, feasible, readily implemented alternative that significantly reduces risk)
- In re Ohio Execution Protocol (Fears v. Morgan), 860 F.3d 881 (6th Cir. 2017) (en banc) (applied “sure or very likely” standard and found plaintiffs fell short)