As noted in the News Scan today, U.S. Magistrate Judge Michael Merz in Ohio issued this decision preliminarily enjoining the use of the present Ohio protocol, which is similar to the one upheld by the U.S. Supreme Court in Glossip v. Gross in 2015. The parties stipulated that the Magistrate Judge rather than the District Judge could make rulings such as this in this case.
How can a district court come to a different result than the Supreme Court? The Supreme Court decision had two independent bases. One part was an affirmance of the district court decision in that case based on the evidence before that court. A different court with a different evidentiary record might come to a different conclusion.
The other part of the Supreme Court decision, though, is not so easily avoided. Glossip says on page 13 of the slip opinion:
But Judge Merz doesn't get it.
How can a district court come to a different result than the Supreme Court? The Supreme Court decision had two independent bases. One part was an affirmance of the district court decision in that case based on the evidence before that court. A different court with a different evidentiary record might come to a different conclusion.
The other part of the Supreme Court decision, though, is not so easily avoided. Glossip says on page 13 of the slip opinion:
The preliminary injunction posture of the present case thus requires petitioners to establish a likelihood that they can establish both that Oklahoma's lethal injection protocol creates a demonstrated risk of severe pain and that the risk is substantial when compared to the known and available alternatives.That requirement should have completely shut down method-of-execution litigation as a means of delaying executions. After all, no state today intentionally uses a method of execution that is substantially more painful than available alternatives. The "Catch-22" strategy of claiming that a state's lethal injection protocol has an unreasonable risk of severe pain in comparison to an alternative and then pressuring drug companies to cut off the alternative should have ended with Glossip.
But Judge Merz doesn't get it.
All the parties and witnesses in this case agree that use of a barbiturate, either as the first drug in a three-drug protocol or as the sole drug, would be preferable to the current Ohio protocol in that it would eliminate the side effects observed in midazolam-involved executions identified in the lay testimony and would also eliminate (or at least reduce to a constitutionally acceptable level) the risk of subjecting the inmate to severe pain.Correct. The drugs that have been cut off by the anti-death-penalty movement are the ones that everyone agrees is better.
The question, then, is the availability of barbiturates. Justice Alito in Glossip reported the demise of the supplies of barbiturates for execution purposes and explained the reasons in terms not likely to be overcome by Ohio, to wit, the manufacturer of thiopental sodium ceasing production and the manufacturer of pentobarbital refusing to permit its export to the United States for execution purposes. Although apparently some States have been able to obtain pentobarbital for executions, Ohio's efforts to obtain the drug from other States and from non-State sources have not met with success.The state has tried to get the preferred drugs and has not been able to. Doesn't that equal "not available"? It does unless you twist the meaning of words in the manner of Alice Through the Looking Glass or 1984.
There remains the possibility that Ohio can obtain the active pharmaceutical ingredient of pentobarbital and have it made into injectable form by a compounding pharmacy. Deposition testimony established that, to do so, Ohio requires an import license from the federal Drug Enforcement Administration and that it has an application for such a license pending, but that it has no indication when a decision on that application might be made."Available" does not mean "might (or might not) become available at some indefinite point in the future." So that is clearly insufficient. Isn't that the end of the case?
In Baze and Glossip, the Supreme Court did not attempt to quantify how available the alternative method must be to qualify. At the time Baze was decided, obtaining barbiturates was not the difficulty it had become by 2015 when Glossip was decided. But even recognizing the problem in Glossip, the Court did not essay a rule about availability.No, but even without "essaying a rule" the high court can count on district court judges (and magistrates) to exercise some minimal degree of common sense about the meaning of common words, can't it? Guess again.
Compounded pentobarbital would be preferable to midazolam to all parties in this case. The Ohio General Assembly has taken steps to protect the anonymity of potential suppliers and compounders in Ohio Revised Code § 2949.221 and 2949.222, indicating that approach is not unacceptable to a majority of the legislature. This Court and the Sixth Circuit have upheld and applied the confidentiality provisions of those statues which were represented to Judge Frost as necessary to obtain possible suppliers of execution drugs. While compounded pentobarbital will not be available to Ohio to permit it to execute the above Plaintiffs on the dates now set, the Court finds Plaintiffs have met their burden to identify a sufficiently available alternative method of execution to satisfy Baze and Glossip.Wow. Magistrate Judge Metz expressly finds that the preferred alternative is not available to carry out the executions as scheduled and in the same sentence finds that the plaintiffs have met their burden of proof on availability.
The Supreme Court reminds us in Glossip that because capital punishment is not unconstitutional, there must be a constitutional way to accomplish it. But that does not imply that an identified alternative to a problematic method must be available immediately.We are not talking here about an alternative that will surely be here next week, with the inmates asking for a brief postponement. We are talking about a highly uncertain alternative and an indefinite postponement. "There must be a constitutional way to accomplish it" is phrased in the present tense. A pie-in-the-sky potential to find an alternative is not good enough.
The ultimate solution is to reopen the supply channels to import the needed barbiturates from Asia. With some leadership in the Food and Drug Administration and the U.S. Department of Justice, that can be done quite easily. I do hope the appointees of the "law and order president" will get on this immediately.
In the meantime, this atrocious decision needs to be appealed on an expedited basis.
Would the AEDPA certification put a stop to this nonsense?
At some point, and I think it plain we've gotten to it, the Supreme Court has to hold lower courts accountable for this sort of thing. Judge Merz has showed himself to be either (a) incompetent or (b) lawless. A sovereign state should not be subject to this sort of thing.
Personally, I think states ought to defy this sort of thing. The harm to the "rule of law"? I would posit that overreaching judges such as Judge Merz have harmed the rule of law already and that the defiance is a natural outgrowth of them not following the law.
If a state qualifies for Chapter 154 under AEPDA, then 28 U.S.C. §2262 applies. Subsection (c) provides that upon occurrence of any of several events, one of which is denial of relief in a capital inmate's first federal habeas corpus petition, "no Federal court thereafter shall have the authority to enter a stay of execution in the case, unless the court of appeals approves the filing of a second or successive application under section 2244(b)."
In my opinion, that would effectively move all method-of-execution litigation in a qualifying state to the state courts, as the federal court would not have jurisdiction to enter a stay.
I believe Ohio filed its appeal the afternoon after this opinion was released. It will be interesting to see if the Sixth Circuit takes quick action.
Thx. I guess it's another reason to get states certified under AEDPA.