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.