In Re: Ohio Execution Protocol Litigation
2:11-cv-01016
| S.D. Ohio | Nov 3, 2017Background
- Campbell and Tibbetts (Ohio death-row inmates) moved for stays, temporary restraining orders, and preliminary injunctions challenging Ohio’s October 7, 2016 Execution Protocol (01-COM-11), which uses 500 mg midazolam as the first drug in a three-drug sequence.
- This is consolidated litigation challenging Ohio’s lethal-injection procedures under 42 U.S.C. § 1983; the record includes multiple prior preliminary-injunction rulings and an en banc Sixth Circuit reversal (Fears v. Morgan) vacating an earlier injunction.
- Plaintiffs pressed Eighth Amendment method-of-execution claims (risk of severe physical and psychological pain from midazolam and the three-drug protocol) and an Equal Protection claim alleging disparate treatment via deviations from the Protocol.
- Plaintiffs presented expert and eyewitness testimony (pharmacology and anesthesia experts, nurse observers, attorneys who witnessed executions) including observations from the Otte execution (tearing, labored/"obstructed" breathing) and recent out-of-state executions using midazolam.
- The court applied the four-factor preliminary-injunction test but, following Sixth Circuit precedent, focused on the first factor: likelihood of success on the merits (Eighth Amendment and Equal Protection). The court denied the requested injunctive relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ohio's protocol is "sure or very likely" to cause severe pain (Eighth Amendment substantive standard) | Midazolam at 500 mg does not reliably produce general anesthesia; second/third drugs will cause severe pain unless inmate is insensate; eyewitness signs (tearing, obstructed breathing) show likely severe pain | Midazolam high dose likely suppresses responsiveness to consciousness checks; evidence is inconclusive and does not meet the heightened Glossip/Baze standard | Denied — plaintiffs failed to show the protocol is "sure or very likely" to cause severe pain given controlling Sixth Circuit precedent and the record presented |
| Whether a known, available, readily implemented alternative exists (Glossip alternative-method requirement) | Proposed alternatives: (1) one-drug barbiturate-only protocol (sodium thiopental/pentobarbital) with stringent compounding/testing and monitoring; (2) two-drug method (midazolam + KCl) without paralytic but with continuous monitoring and safeguards | Ohio: alternatives are not "available" (drugs not obtainable with ordinary transactional effort) and plaintiffs offered no proof the State could readily implement the detailed alternatives | Denied — plaintiffs failed to prove an available, feasible, readily-implemented alternative satisfying Glossip and the Sixth Circuit's Fears standard |
| Whether deviations from the Protocol create an Equal Protection violation burdening fundamental rights (burden-on-fundamental-rights theory) | ODRC deviations (failure to accommodate Otte’s obesity, telephone access delay for counsel, inadequate consciousness checks, documentation issues) show intentional disparate treatment increasing risk of Eighth Amendment harm | Alleged lapses are isolated, negligent, or correctable; plaintiffs failed to prove a policy/custom (Monell) or likelihood the same violations will recur for Campbell or Tibbetts | Denied — plaintiffs did not prove intentional state action/policy or a likelihood of repetition sufficient to show an Equal Protection violation |
| Whether preliminary injunctive relief / stays of execution should issue | Immediate injunctive relief necessary to prevent irreparable, constitutionally cognizable pain and to preserve jurisdiction | State interest in enforcing final judgments and execution protocol; prior precedent and record do not support injunction | Denied — plaintiffs failed to show likelihood of success on the merits; other injunction factors either favored plaintiffs previously but controlling precedent required denial here |
Key Cases Cited
- Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) (standard for preliminary injunction requires likelihood of success and balance of harms)
- Glossip v. Gross, 135 S. Ct. 2726 (2015) (plaintiff must show method is sure or very likely to cause severe pain and a known, available alternative exists)
- Baze v. Rees, 553 U.S. 35 (2008) (substantial-risk framework for method-of-execution challenges)
- Fears v. Morgan, 860 F.3d 881 (6th Cir. 2017) (en banc) (reversed prior district injunction; emphasized the "sure or very likely" standard and stricter alternative-drug availability inquiry)
- Cooey v. Strickland, 589 F.3d 210 (6th Cir. 2009) (method-of-execution and substantial-risk analysis in this litigation)
- Monell v. Department of Social Services, 436 U.S. 658 (1978) (municipal/state liability requires unconstitutional policy or custom)
- Workman v. Bredesen, 486 F.3d 896 (6th Cir. 2007) (four-factor preliminary-injunction framework applied in capital cases)