A federal appeals court ruled that Ohio's use of a three-drug process for executions does not violate the Constitution and allowed the state's use of the death penalty to continue.
The 8-6 decision resulted from a full "en banc" review by the 6th Circuit Court of Appeals that reversed a court panel's 2-1 decision preventing Ohio from using its three-drug solution in its lethal injections.
The majority opinion was written by Judge Raymond Kethledge, who President Trump included on his Supreme Court short lists to fill the vacancy created by the death of Justice Antonin Scalia. If another vacancy materializes anytime soon, Kethledge likely would resurface as a top contender.
The three inmates who challenged Ohio's execution protocol as a violation of the Eighth Amendment's protection against cruel and unusual punishment were found to have committed brutal crimes. Ronald Phillips raped a 3-year-old girl and ruptured her internal organs. The girl died after her heart collapsed two days after Phillips' crime. Gary Otte robbed and murdered two Ohioans on different nights of the same week and "went out partying" after each slaying. Raymond Tibbetts slaughtered an old man and his caretaker — the elderly man was found with butcher knives sticking out of his chest and back, while the caretaker was discovered with their skull cracked open nearby on the floor.
Kethledge called Phillips, Otte and Tibbetts' claim "unprecedented" in a sense because, he wrote, the Supreme Court has never eliminated a state's chosen method to use the death sentence.
In reversing the preliminary injunction that blocked the three-drug protocol for the injections, Kethledge called the district court's decision "seriously flawed."
"To begin with, that opinion did not apply the relevant legal standard, which by now the Supreme Court and our court have recited a total of four times," Kethledge wrote. "Specifically, to challenge successfully a state's chosen method of execution, the plaintiffs must 'establish that the method presents a risk that is sure or very likely to cause' serious pain and 'needless suffering.' ... Instead, the district court addressed only whether Ohio's procedure presents a 'substantial risk of serious harm'."
Kethledge also wrote that the district court's findings provide "little support for its conclusion that Ohio's three-drug protocol creates an unconstitutional risk of pain."
The ruling means Phillips execution will proceed, which is scheduled for July 26. Phillips would be the first inmate executed by Ohio in more than three years, according to the Columbus Dispatch. Phillips' legal representation told the Dispatch that Phillips will appeal the ruling to the U.S. Supreme Court.