(Reuters) - A federal appeals court on Tuesday agreed to reconsider its recent decision blocking Ohio from using its lethal injection protocol to execute three death row inmates.
The 6th U.S. Circuit Court of Appeals in Cincinnati granted Ohio’s request to take a second look at whether a preliminary injunction from a lower court judge against the three-drug protocol should stand.
A divided three-judge appeals court panel had upheld the injunction on April 6, but Tuesday’s order means all active 6th Circuit judges will review that decision in an “en banc” hearing. Oral argument was scheduled for June 14.
The injunction was issued after the inmates showed it was likely that Ohio’s use of midazolam, the first of the three drugs, to render them unconscious entailed a “substantial risk” of serious pain that violated their constitutional rights against cruel and unusual punishment.
Allen Bohnert, a federal public defender representing two of the inmates and who opposed a rehearing, in a statement said evidence about the sedative’s use in botched executions, and the lack of safeguards in Ohio’s protocol, will convince the en banc court of midazolam’s “unsuitability as an execution drug.”
A spokeswoman for Ohio Attorney General Mike DeWine, whose office sought the rehearing, declined to comment.
DeWine, a Republican, in court papers said the appeals court panel misapplied the law, including as to whether there were “known and available alternative” means to conduct executions.
A handful of U.S. states use midazolam in executions.
One, Arkansas, on Monday carried out the first back-to-back executions in a single state in 17 years, before its supply of midazolam reached its expiration date.
Because the Ohio injunction remains in place, Tuesday’s order will likely delay the executions of at least two of the three inmates for their respective murders.
The executions of Ronald Phillips and Gary Otte had been scheduled for May 10 and June 13, respectively, while Raymond Tibbetts was scheduled to be put to death on July 26.
DeWine had sought a decision by the beginning of May, to avoid possible delays in the scheduled executions of 33 Ohio inmates through 2021, and because “Ohio, its citizens, and the victims have an interest in seeing justice served.”
The case is In re: Ohio Execution Protocol Litigation, 6th U.S. Circuit Court of Appeals, No. 17-3076.
Reporting by Jonathan Stempel in New York; Editing by Jonathan Oatis