Ohio Death Row Prisoner Warren Henness Receives Temporary Reprieve

On January 25, 2019, Ohio Governor Mike DeWine used his clemency power to grant a six-month reprieve to death row prisoner Warren Henness, halting his scheduled February 13 execution. Governor DeWine’s decision came on the heels of Magistrate Judge Michael R. Merz’s order recognizing the Eighth Amendment issues implicated by Ohio’s current three-drug lethal injection protocol. The court's order found that execution by the current protocol "will certainly or very likely cause him severe pain and needless suffering because of the dose of midazolam intended to be used will not render him sufficiently unconscious as to prevent him from suffering the severe pain caused by injection of the paralytic drug or potassium chloride or the severe pain and needless suffering caused by pulmonary edema from the midazolam itself…".

Citing evidence that compared the experience of execution using midazolam to the effects of waterboarding, the court concluded that the execution of Mr. Henness "will almost certainly subject him to severe pain and needless suffering.  Reading the plain language of the Eighth Amendment, that should be enough to constitute cruel and unusual punishment."

Despite these concerns, Judge Merz ultimately decided he lacked the power to stop Henness’ execution because Henness had not met his burden under Glossip v. Gross, which requires prisoners challenging lethal injection protocols to show that an alternative, readily available execution method exists. Judge Merz is no stranger to lethal injection litigation. In 2017, he ruled that there was a “substantial risk of serious harm” in using midazolam in executions and granted an injunction blocking all executions. The ruling eventually was overturned by an en banc Sixth Circuit.

Governor DeWine has directed the Ohio Department of Rehabilitation and Correction to assess Ohio’s current options for execution drugs and examine possible alternative drugs. On March 7, he granted six-month reprieves to three more prisoners: Cleveland Jackson, Kareem Jackson, and Gregory Lott, who originally had execution dates scheduled from May through August. In granting the reprieves, the governor stated that it is highly unlikely a new execution protocol, and any subsequent legal challenges to it, would be in place in time. He has not announced when he expects executions to resume but has said, “As long as the status quo remains, where we don’t have a protocol that has been found to be OK, we certainly cannot have any executions in Ohio.” State Prisons Director Annette Chambers-Smith, a DeWine appointee, seemed to agree, saying, “I don’t feel a need to try to come up with a protocol in an expeditious manner. This is a dignified process – this is human life we’re talking about. So, the department will take the time that we need to do a good job.”

Ohio has a troubling history of botched executions. In 2014, after becoming the first state to experiment with midazolam (then using it as part of a two-drug cocktail alongside hydromorphone, an opioid), Ohio notoriously took 25 minutes to execute Dennis McGuire, who gasped throughout the process. In July 2018, operating under Ohio’s current midazolam protocol, Robert Van Hook was also described as wheezing and gasping during his execution. Executions in other states using midazolam have proceeded similarly. Though Oklahoma officials declared Clayton Lockett unconscious after administering midazolam during Lockett’s 2014 execution, Lockett continued to writhe and speak. And, also after receiving midazolam, Billy Ray Irick strained against his restraints and choked during his August 2018 execution in Tennessee.