In re: Ohio Execution Protocol Litigation, No. 19-3064 (6th Cir. 2019)Annotate this Case
Henness was convicted of offenses including aggravated murder from conduct occurring in 1992 and was sentenced to death. Henness challenged Ohio’s method of execution under 42 U.S.C. 1983. As his execution date approached, Henness moved to stay his execution, arguing that Ohio's drug protocol (500 milligrams of midazolam, a paralytic agent, and potassium chloride) was likely to cause him to suffer a painful death, and that, given the availability of significantly less painful alternative methods of execution, the use of that protocol would violate the Eighth Amendment’s prohibition on cruel and unusual punishment. Though Henness presented expert testimony, the Sixth Circuit affirmed the denial of relief. Neither pulmonary edema nor associated symptoms qualify as serious pain prohibited by the Eighth Amendment. Midazolam may cause suffocation but the Eighth Amendment only prohibits forms of punishment that seek to intensify an inmate’s death by “superadd[ing]” feelings of “terror, pain, or disgrace.” Henness did not establish that midazolam is incapable of suppressing his consciousness enough to prevent him from experiencing constitutionally problematic pain. Even if Ohio’s protocol were very likely to cause severe pain, Henness’s proposed alternative method, secobarbital, is not a viable alternative. Secobarbital can, in some instances, take days to cause death. A state may decline to use even a feasible alternative if it has a legitimate reason for doing so. Choosing not to be the first state to experiment with a new method of execution is a legitimate reason.