Federal magistrate OKs Ohio execution despite fears of ‘severe pain and needless suffering’ – By Jeremy Pelzer (Plain Dealer) / Jan 23 2019
A federal magistrate has ruled the execution of convicted killer Warren Henness (above) can proceed even though he compared Ohio’s lethal-injection protocol to the torture method known as “waterboarding.” (Ohio Department of Rehabilitation and Correction)
COLUMBUS, Ohio — A federal magistrate has ruled that Ohio’s lethal-injection cocktail is likely an unconstitutionally cruel and unusual punishment akin to waterboarding, but he is allowing an execution next month to proceed because the condemned didn’t present a viable alternative way to die.
Magistrate Michael Merz ruled last week that Ohio can move ahead with the execution of Columbus murderer Warren Keith Henness on Feb. 13 using a combination of three drugs: midazolam (as a sedative), a paralytic drug, and potassium chloride to stop his heart.
In his decision Jan. 15, Merz singled out problems with using midazolam in executions, noting that he ruled in 2017 that the three-drug cocktail was unconstitutional (his decision was later overturned on appeal).
“If Ohio executes Warren Henness under its present protocol, it will almost certainly subject him to severe pain and needless suffering,” Merz wrote. “Reading the plain language of the Eighth Amendment, that should be enough to constitute cruel and unusual punishment.”
He cited testimony from medical witnesses that high doses of midazolam and other drugs cause pulmonary edema, which he described as “painful, both physically and emotionally, inducing a sense of drowning and the attendant panic and terror, much as would occur with the torture tactic known as waterboarding.”
However, the U.S. Supreme Court ruled in 2015 that Death Row inmates challenging how they will be put to death must show that an alternative means of execution is “available,” “feasible,” and can be “readily implemented.”
Henness proposed two alternatives: drinking secobarbital in a sweet liquid such as apple juice, or an oral injection of four drugs – midazolam, digoxin, morphine sulfate, and propranolol.
Merz rejected both ideas, noting that neither method has ever been used to carry out an execution. He also cited testimony that it could take more than an hour for Henness to die using either of the options he suggested and that Henness failed to show that there is a readily available source of the drugs.
Merz concluded that he was not “comfortable” with his ruling but had to abide by the Supreme Court’s ruling.
Henness was convicted of murdering his drug-abuse counselor, Richard Myers, in 1992. Prosecutors said Henness kidnapped Myers, shot him five times at an abandoned water-treatment plant, severed Myers’ finger to get his wedding ring, then drove around in Myers’ car for several days forging his checks and using his credit cards to get cash and buy crack cocaine.
Henness has maintained his innocence.
Ohio, like many other states with the death penalty, has struggled to obtain lethal-injection drugs since European pharmaceutical companies cut off further sales on moral and legal grounds.
After the controversial execution of killer Dennis McGuire in January 2014, Ohio imposed a three-year moratorium on executions as it worked to find a new lethal-injection protocol – and suppliers willing to sell them the drugs.
Since the moratorium was lifted in 2017, Ohio has executed three people using the current three-drug cocktail – all without complications or unexpected problems.
