A federal appeals court has granted Ohio's request to resume scheduled executions next month, when the state will use a new, untested 1-drug method of lethal injection.
The 6th Circuit U.S. Court of Appeals on Wednesday denied death row inmate Kenneth Biros' request for a stay of execution. His lawyers had argued Ohio's previous 3-drug intravenous cocktail -- used to execute capital inmates -- amounted to cruel and unusual punishment.
The judges concluded since the state announced last week it will change its protocol and rely on just one drug, Biros' argument was essentially moot.
"In granting a stay of execution, the district court based its reasoning on concerns related to the old procedure," wrote the three-judge panel. "Because the old procedure will not be utilized on Biros, no basis exists for continuing the stay previously in effect."
There was no immediate reaction to the ruling from Biros' attorney, Timothy Sweeney. His legal team is expected to further contest the execution, scheduled for December 8.
Both the governor and federal courts had halted capital punishment in the state in September after a botched attempt to execute another prisoner, Romell Broom. The prison staff could not find a suitable vein for the injections.
3 other planned executions were delayed.
Ohio's new 1-drug method has never been tried before on U.S. death row inmates. It relies on a single dose of sodium thiopental injected into a vein. A separate 2-drug muscle injection would be available as a backup.
The 1-drug method has been used to euthanize animals.
The same drug, sodium thiopental, at a much lower dosage, is the 1st ingredient in the 3-drug method -- which is used in all but one of the other 34 states with the death penalty. Some death penalty opponents claim the sodium thiopental, which renders the prisoner unconscious, can wear off too quickly, and that some prisoners would actually be awake and able to feel pain as the procedure continues.
Sweeney, Biros' attorney, had also argued the new one-drug method was unconstitutional, and wrote in an appeal it would amount to "human experimentation, pure and simple."
Biros, 51, was convicted of the brutal 1991 murder of Tami Engstrom near the town of Warren. He met the woman at a bar and offered to drive her home, and later admitted robbing and trying the rape her. Prosecutors said Biros then cut up her body and spread parts of it around northeast Ohio and neighboring Pennsylvania. He claimed he acted in a fit of drunken rage.
Gov. Ted Strickland 2 months ago announced that he would delay the executions of 2 other men until March, at the earliest. Broom's execution has not been rescheduled.
"Additional time is needed to fully conduct a thorough and comprehensive review of an alternative or back-up lethal injection protocol that is in accordance with Ohio law," Strickland said when announcing the delays.
Different states and different judges have applied different standards over whether an inmate can make a challenge to the method of execution.
Executions this decade in Florida and Ohio were rife with problems, taking much longer than expected when technicians had trouble inserting needles into the prisoners' veins.
The Supreme Court in 2006 ruled that prisoners could make last-ditch legal challenges to the method of execution, using claims that they would suffer a painful death. Last year, the justices ruled Kentucky's lethal injection protocols to be constitutional. Officials there had argued the process was similar to those in other states.
Ohio has put 32 people to death in the past decade, when executions resumed in the state. There have been 48 executions nationwide this year.
Source: CNN, Nov. 25, 2009
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