A judge for the US District Court for the Southern District of Ohio [official website] on Tuesday refused to lift [order, PDF] a preliminary injunction that delays executions in Ohio. Last month Judge Michael Merz blocked [JURIST report] Ohio’s lethal injection protocol by deeming it unconstitutional under the Eighth Amendment [text]. Attorneys for Ohio’s prison system argue [WRCB report] that the court abused its power and requested that the injunction be lifted on the basis that it would likely be overturned on appeal. In his opinion, Merz explained that the detriments of overturning the injunction would far outweigh the benefits. He stated that while lifting the injunction would cause irreparable harm to the plaintiffs, it would also undermine the process of appeals, writing, “If the event sought to be enjoined transpires before the appeal is heard, the appeal will be dismissed as moot.” The US Court of Appeals for the Sixth Circuit will hear the case February 21.
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.