The state’s first execution in more than three years is scheduled for Wednesday. Death row inmate Ronald Phillips is scheduled to die for the 1993 rape and killing of his girlfriend’s 3-year-old daughter in Akron.
He and two other inmates seek more time from the U.S. Supreme Court to appeal Ohio’s lethal injection method.
Their lawyers argue the procedure’s first drug, the sedative midazolam, creates an unconstitutional risk of pain by not rendering prisoners deeply unconscious before two other drugs kick in.
Midazolam has been used in some executions that were problematic, including in Ohio, Arkansas and Arizona.
Phillips’ attorneys argue they need time to appeal a lower court decision allowing Ohio to use the new method. The other drugs are rocuronium bromide, which paralyzes inmates, and potassium chloride, which stop their hearts.
The attorneys want the delay because they believe the full Supreme Court will take their appeal of last month’s ruling by the 6th Circuit Court of Appeals. That’s because that decision runs counter to previous rulings by the high court, and because it “involves an issue of recurring and national importance,” the attorneys said in Tuesday’s filing.
In Friday’s response, the state disputed inmates’ claims that Ohio has made inconsistent legal arguments as it has sought to legally defend its various, evolving execution protocols. Some changes were made necessary because of a lack of available drugs.
“Petitioners allege Ohio made ‘unequivocal promises’ to ‘never again…use a paralytic or potassium chloride.’ Not so,” the state wrote. “There is a wide gulf between what the affidavit says — that those drugs would not be used ‘going forward’ under the new protocol — and the argument that Ohio promised to never, under any circumstances, use those drugs.”
The request for the delay was made to Justice Elena Kagan, who handles such appeals for Ohio.
Ohio argued the state risks “ongoing irreparable harm” if the delays are granted and that “Ohio’s interests are harmed each time it has to stop and start implementation of its execution protocol.”
Lawyers note that training for an execution takes at least 30 days and requires four rehearsals. Six are usually held. They said delaying Phillips’ execution also runs the risk of delaying those executions scheduled after his.
Phillips has separately sought an emergency stay on Wednesday’s execution based on his age at the time of the murder. He was 19 and, he contends, just “slightly older” than the Supreme Court’s cutoff of 18 for purposes of barring executions of juveniles. His request argues the age should be 19 or 21.
Attorneys for the state said in another filing Friday that Phillips’ arguments are legally baseless and misplaced.
“Phillips is right that the Governor (John Kasich) has been considerate in ensuring that Phillips’ case gets adequate review,” they wrote. “But Executive grace is not boundless and Phillips’ case has been adequately and lawfully reviewed.”
Kagan is expected to rule on both requests next week.