Challenge to Ohio's newest execution method goes to trial

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Posted: Jan 03, 2017 2:43 PM

COLUMBUS, Ohio (AP) — Ohio's newest execution method is either a legal approach to putting condemned killers to death or a process akin to burning inmates at the stake, according to arguments in the latest challenge to capital punishment in the state.

A four-day trial that began Tuesday in federal court in Dayton focuses on Ohio's updated execution system and a new 3-drug method similar to one used several years ago.

Executions have been on hold in Ohio since January 2014, when death row inmate Dennis McGuire gasped and snorted during the 26 minutes it took him to die.

The state plans to execute Ronald Phillips on Feb. 15 for the rape and death of his girlfriend's 3-year-old daughter in Akron in 1993.

Witnesses before Magistrate Judge Michael Merz will include members of the state execution team, who will not be named and will answer questions while sitting behind courtroom screens.

Lawyers for death row inmates say a three-drug method, announced last year, is worse than a similar procedure used years ago. They say multiple problems remain with the way the state prepares and carries out executions.

In a court filing, the attorneys say the first drug in the process — midazolam — is unlikely to relieve an inmate's pain. The drug, which is meant to sedate inmates, was used in executions in Arizona and Ohio in 2014 that turned out to be problematic. But last year, the U.S. Supreme Court upheld the use of midazolam in a case out of Oklahoma.

According to the filing, because midazolam is not a barbiturate and cannot relieve pain, inmates are likely to experience "severe physical pain," mental suffering and anguish. As a result, "such an execution would be inhuman and barbarous, akin in its level of pain and suffering to being buried alive, burning at the stake, and other primitive methods long since abandoned by civilized society," the filing last fall said.

The state used a two-drug method with McGuire, beginning with midazolam, but then discontinued it. Afterward, Ohio struggled to find new supplies of drugs since they were placed off limits for executions by drugmakers.

The prisons agency now says it will use midazolam; rocuronium bromide, which causes paralysis; and potassium chloride, which stops the heart. But the state hasn't said where it got the drugs.

The state says the method is similar to Ohio's past execution process, which all survived court challenges. State attorneys also say the U.S. Supreme Court ruling last year makes clear that the use of midazolam is allowable.

"The Eighth Amendment does not prevent Ohio from adopting a new method of execution, or returning to a previously used one, particularly when changes in the availability of drugs necessitate such a change," state attorneys said in a filing last fall.

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This story has been updated to correct that the trial is being held in Dayton.