[JURIST] A federal judge on Thursday blocked [opinion, PDF] Ohio's lethal injection protocol. The protocol, which uses three drugs, was rejected as the sedative midazolam was deemed insufficiently humane. The sedative has been used in numerous states that experienced problematic executions. Prisoners argued that use of the sedative violated their Eighth Amendment rights [LII materials]. US District Court Magistrate Judge Michael Merz found that "use of midazolam as the first drug in Ohio's present three-drug protocol will create a 'substantial risk of serious harm' or an 'objectively intolerable risk of harm.'" The Supreme Court ruled [opinion, PDF] in 2015 that the use of midazolam in Oklahoma's lethal injection was not unconstitutional. Merz noted that the Supreme Court decision does not mean that midazolam could never been found to be inhumane and one issue in that case was that no logical alternative had been provided. Merz noted [NPR report] that such an alternative is available in this case:
All the parties and witnesses in this case agree that use of a barbiturate, either as the first drug in a three-drug protocol or as the sole drug, would be preferable to the current Ohio protocol in that it would eliminate the side effects observed in midazolam-involved executions identified in the lay testimony and would also eliminate (or at least reduce to a constitutionally acceptable level) the risk of subjecting the inmate to severe pain.Executions have been put on as a result of Thursday's decision.
Numerous states have switched to the three-drug protocol, which uses midazolam as a sedative before administering a second drug to paralyze and stop breathing and a third drug to stop the heart. In December the Mississippi Supreme Court allowed a challenge [JURIST report] to the use of the sedative. Also that month an inmate in Alabama coughed and struggled to breathe for 13 minutes [JURIST report] during the administration of midazolam, which death penalty opponents called an "avoidable disaster." The US Supreme Court ruled 5-4 in Glossip v. Gross [SCOTUSblog materials] last year that Oklahoma's use of midazolam as part of its lethal injection protocol does not violate [JURIST report] the Eighth Amendment ban on cruel and unusual punishment [LII backgrounder]. In November the US Court of Appeals for the Tenth Circuit affirmed the dismissal [JURIST report] of a case involving the 2014 botched execution [JURIST report] of Clayton Lockett, a death row inmate in Oklahoma.