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Sixth Circuit to review en banc Ohio’s execution protocol … on a pace likely to preclude executions for at least a few more months

By Douglas Berman

As indicated in this short order, yesterday the Sixth Circuit announced that it would be rehearing en banc the State of Ohio’s appeal of the lower court stay issued earlier this year which blocked Ohio from using its latest three-drug protocol to execute condemned murderers.  A few weeks ago, a divided three-judge panel upheld the trial court’s stay, but now the full Sixth Circuit (apparently absent one recused judge) will hear oral argument on these matters on June 14.

One key issue in the Ohio lethal injection litigation concerns that state’s plan to use midazolam as the first drug in the execution process.  The apparent recent success that Arkansas has had with a similar protocol using midazolam now seems likely to be part of the discussion and debate before the full Sixth Circuit.

Because the lower court stay remains in place as the full Sixth Circuit take up this issue, Ohio’s Gov Kasich is certainly going to have to reschedule at least two slated executions.  As detailed on this Execution Schedule page from the Ohio Department of Rehabilitation & Correction, Ronald Phillips is currently scheduled for execution on May 10, and another inmate has a June 13 execution date.  Though it seems likely the en banc Sixth Circuit will seek to rule not long after it hears oral argument (and it usually makes sense to assume that a vote for en banc review will lead to a different outcome than the prior panel decision), I am not sure it would be wise for Ohio to assume it will have an execution green light by its July 26 execution date.

As the Ohio DRC execution page details, Ohio has already scheduled executions for 33 Ohio inmates(!) running all the way through 2021(!).  So if the Sixth Circuit (and ultimately the Supreme Court) eventually upholds the state’s latest execution protocol, Ohio could be on a path to having more executions in the next few years than perhaps any and every other state in the nation.

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