It took Ohio more than three years to establish its current three-drug lethal injection protocol, in part because of the difficulty many states have had finding drugs. The state carried out the first execution under the current system in 2017.
The drug scarcity occurred over the past decade as multiple manufacturers and distributors put their drugs off limits for executions.
The first drug in Ohio’s system, the sedative midazolam, has also been subject to lawsuits that argue it exposes inmates to the possibility of severe pain because it doesn’t render them deeply enough unconscious.
Because of Ohio’s use of midazolam, federal Judge Michael Merz called the constitutionality of the state’s system into question in a Jan. 14 ruling and said inmates could suffer an experience similar to waterboarding.
However, Merz did not stop the execution. Instead, he said that under a test created by a previous U.S. Supreme Court ruling, Henness couldn’t demonstrate that a feasible execution alternative exists, and thus the execution could proceed.
Merz’s ruling is likely headed to a federal appeals court, which has previously upheld the use of midazolam in Ohio.
Three additional executions are scheduled before September. It’s likely attorneys in all those cases will ask for similar delays.
Henness’ lawyers, who had asked DeWine on Thursday for the delay, were pleased with the decision.
“We commend Governor DeWine for his leadership and for ensuring the justice system operates humanely in Ohio,” said David Stebbins, a federal public defender, in an emailed statement.
The announcement was DeWine’s first as governor regarding a death penalty case.
Myers was a lab technician at a veterans hospital in Chillicothe in southern Ohio and frequently volunteered with Alcoholics Anonymous.
Prosecutors said Henness kidnapped Myers, bound and then shot him at an abandoned water treatment plant, and then stole his credit cards, checks and car.
Henness, 55; his wife, Tabatha Henness; and friend Ronald Fair drove around in Myers’ car for several days afterward, forging the checks and using the credit cards, according to prosecutors.
Henness’ wife and their friend pleaded guilty to minor charges of forgery and then testified against Henness at trial.
Henness’ attorneys have argued he deserves mercy because of lingering questions about the others’ involvement in the killing.
Prosecutors say Henness has a history of lying and refusing to take responsibility for the killing.
Myers’ widow and son “are extremely disappointed that after almost 27 years from the vicious execution style murder of their loved one that there is further delay in carrying out the court’s lawful sentence,” Franklin County Prosecutor Ron O’Brien said in an emailed statement.
The Ohio Parole Board unanimously rejected Henness’ plea for mercy this month.
Andrew Welsh-Huggins can be reached on Twitter at https://twitter.com/awhcolumbus .