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Republican Governor Mike DeWine postponed the execution of Warren Keith Henness late last month and ordered the state Department of Rehabilitation & Correction to “to assess Ohio’s current options for execution drugs and examine possible alternative drugs.” Henness was scheduled to be executed next Wednesday.

DeWine ordered the reprieve in response to a decision issued by a federal judge on January 14 stating that, “If Ohio executed Warren Henness under its present protocol, it 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.

“…We have good evidence that midazolam will cause the ‘waterboarding’ effects of pulmonary edema.”

“The evidence presented in the federal court hearing made it clear that moving forward under the current lethal-injection protocol would subject Mr. Henness to needless pain and suffering, in direct violation of his rights under state law and the state and federal constitutions,” federal public defender and Henness attorney David Stebbins told the Columbus Dispatch.

However, Judge Michael Merz did not call off the execution, pointing to a previous U.S. Supreme Court ruling that required Henness to offer an alternative execution method that is “available, feasible, and can be readily implemented,” and since he did not, Merz said he had no choice but to allow the execution to proceed.

DeWine’s order moves Henness’s execution to September 12.

Ohio is one of several death penalty states that are finding it increasingly difficult to procure lethal injection drugs. Several pharmaceutical companies, including McKesson, Fresenius Kabi, and Alvogen, have filed lawsuits to prevent states from using their drugs in executions and, as the sources dry up, states are scrambling to find alternatives. Another example is in Arkansas, where the last of the state’s lethal injection drugs expired late last month, and state officials say they are unable to purchase more until and unless the law is changed to allow them to keep the source of its drugs secret.

Henness was sentenced to death in 1994 for the kidnap, robbery, and murder of 51-year-old Richard Myers in 1992.

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