With 2 in 3 months, Ohio executions could be back on track

COLUMBUS (AP) — Court rulings favorable to the state and the outcome of two executions in three months indicate Ohio could be on track to resume putting inmates to death regularly.

The state executed child killer Ronald Phillips in July and double killer Gary Otte on Wednesday in the state death chamber at the Southern Ohio Correctional Facility in Lucasville.

Witnesses said Phillips did not appear to be distressed. Otte’s chest rose and fell several times over two minutes in a fashion similar to some executions, though the movement appeared to go on longer than in the past.

Federal public defender Carol Wright, second from right, briefs other attorneys and members of a team representing condemned inmate Gary Otte following Otte’s execution on Wednesday, Sept. 13, 2017, in Lucasville, Ohio. Wright, who witnessed the execution, believes Otte’s rising and falling stomach indicated he was suffering from a phenomenon known as “air hunger” and she tried unsuccessfully to leave the witness room and alert a federal judge. She said the judge declined to stop the procedure, though it was likely too late at that point. (AP Photo/Andrew Welsh-Huggins)

Otte’s lawyers believe he suffered a phenomenon known as air hunger and plan to continue their challenge of Ohio’s use of a sedative called midazolam.

“My concerns were that he was obstructing, he was suffering air hunger, trying desperately to get air, and there were tears running down his face, which indicated to me that he was feeling pain or sensations,” federal public defender Carol Wright said after Wednesday’s execution.

Prisons spokeswoman JoEllen Smith said the procedure “was carried out in compliance with the execution policy and without complication.”

The next and last execution scheduled this year is Nov. 15, when the state plans to put Alva Campbell to death. A jury found Campbell, 69, guilty of killing 18-year-old Charles Dials 20 years ago after Campbell, who was in a wheelchair while feigning paralysis, escaped from a court hearing.

Ohio is scheduled to execute four people next year and six in 2019. Nine men were executed in 2010, the most since Ohio resumed putting inmates to death in 1999.

The availability and constitutionality of drugs used in lethal injection in Ohio have been the state’s main impediment to carrying out executions in recent years.

Attorneys representing death row inmates want the U.S. Supreme Court to hear new arguments about midazolam and its effectiveness. They argue that the sedative, even at a massive 500 mg dose, isn’t enough to render inmates so deeply unconscious that they won’t suffer serious pain from the second two drugs.

The court upheld the use of midazolam in a case out of Oklahoma in 2015.

Lower federal courts have rejected the pain argument in recent weeks. In June, a federal appeals court said attorneys challenging midazolam had failed “to show that Ohio’s protocol is ‘sure or very likely’ to cause serious pain.”

Shortly before Otte’s execution, federal Judge Michael Merz echoed that decision, saying the “second and third drugs will certainly cause pain if injected into a fully conscious person, but Otte still has not proven that he is certain or likely to experience that pain.”

In that ruling, Merz noted that residents of Ohio have “an interest in seeing justice served through the timely completion of lawful sentences.”

Beginning in 2014, Ohio went more than three years without an execution as it struggled to find a source for drugs used in lethal injection.

The state sought an alternative after inmate Dennis McGuire repeatedly snorted and gasped during his 26-minute execution in January of that year, the longest execution to date in Ohio. The state used midazolam and hydromorphone in a two-drug combo it then abandoned.

Ohio announced last fall it had a source for a new 3-drug method. It said later it had enough drugs to carry out at least four executions. Records obtained by The Associated Press show the state could have enough for dozens.

Stephen Gray, the prisons chief attorney, declined Wednesday to say how many more executions the state could carry out with its current drug supply.

The state likely has more legal challenges ahead, said Lori Shaw, a University of Dayton law professor.

“We have not had enough executions featuring the new protocol to clearly establish that the risk of severe pain it creates is acceptable,” Shaw said.

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