Governor Supports New Lethal Injection MethodOhio's revised method of executing death row inmates by lethal injection gets the okay from the Governor.
Friday, the Ohio Department of Corrections and Rehabilitation announced the state will switch from a three-drug injection, to a single injection into one vein. The new method will also have a back-up muscle injection.
Ohio's old method came under fire after a death row inmate walked away from a botched execution attempt.
In a statement, Ohio Governor Ted Strickland said, "I believe the department's assessment and recommendation for changes to the current lethal injection protocol are reasonable, and in accordance with Ohio's lethal injection law."
Barring legal challenges, condemned inmate Kenneth Biros is scheduled, December 8, to be the first prisoner in the nation to be executed using the new method.
Source: WYTV News, Nov. 15, 2009
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Ohio to change way it executes prisoners
Ohio waded into uncharted territory Friday when it announced plans to switch from the usual 3-drug cocktail used to execute inmates to a 1-drug method that death penalty opponents praised as a step forward albeit one that has apparently never been tried on prisoners.
The switch came 2 months after an Ohio inmate walked away from a botched execution attempt, and it is almost certain to get tied up in appeals and draw the close attention of other states that have long used the 3-drug method.
''I chose to do it because I'm getting sued either way,'' Terry Collins, Ohio prisons director, said Friday.
Under the 3-drug method, the 1st drug knocks out an inmate, the second paralyzes him and the third stops his heart a process that death penalty opponents argue is excruciatingly painful if the first drug doesn't work.
The single-drug technique amounts to an overdose of anesthesia, Collins said.
Death penalty opponents hailed Collins' decision as making executions more humane but expressed reservations about using such an untested method. The same drug is commonly used to euthanize pets and in some parts of Europe has been used in assisted suicides.
''This is a significant step forward,'' said Ty Alper, associate director of the Death Penalty Clinic at the University of California, Berkeley, law school. ''Paralyzing inmates before executing them so we can't tell whether they are suffering is a barbaric practice, and Ohio should be commended for stopping it.''
Richard Dieter, director of the nonprofit Death Penalty Information Center, noted the new practice would essentially be an experiment performed on inmates.
''They're human subjects and they're not willingly part of this,'' Dieter said. ''This is experimenting with the unknown, and that always raises concerns.''
Ohio's decision, filed in papers Friday in U.S. District Court, said it would switch from a three-drug cocktail to a single injection of thiopental sodium into a vein. A separate two-drug muscle injection will be available as a backup.
With the change, Ohio also said it was ready to resume executions, on hold since the unsuccessful attempt Sept. 15 to put to death Romell Broom, who raped and killed a 14-year-old girl in 1984.
Gov. Ted Strickland stopped the execution after two hours when executioners failed to find a suitable vein. Broom complained in an affidavit after the execution attempt that his executioners painfully hit muscle and bone during as many as 18 attempts to reach a vein.
The state said the new procedure will be in place by Nov. 30 in time to execute Kenneth Biros on Dec. 8. A federal judge had temporarily halted his execution because of the botched Broom execution but left open the possibility of the procedure taking place.
Temporary moratoriums are also in place in California and Maryland, where courts are reviewing proposed changes to injection procedures, though none involving a switch to a single drug.
Other states are unlikely to make a similar switch soon, said Doug Berman, an Ohio State University law professor and death penalty expert.
Several states have joined Ohio in facing constitutional challenges to their 3-drug execution procedures, but Ohio is the first to drop that approach in favor of one dose.
The U.S. Supreme Court upheld the constitutionality of lethal injection last year, but Ohio's new system is substantially different from the 3-drug process the court examined. In its ruling, Chief Justice John Roberts briefly addressed the prospect of using a single sedative in a dose large enough to cause death.
The 1-drug method, Roberts said, ''has problems of its own, and has never been tried by a single state.''
That means Ohio could be opening itself to new litigation, said Deborah Denno, a law professor at Fordham University in New York and a lethal injection expert.
''The inmates who are going to be executed could challenge the constitutionality of what's being raised in Ohio,'' Denno said Friday.
Collins said state officials consulted with an array of experts, including pharmacologists, pharmacists, coroners and anesthesiologist Mark Dershwitz, a University of Massachusetts professor and physician who advises state prison systems across the country.
The state said in a court filing last month it was having a hard time finding medical personnel willing to consult about injection because of professional and ethical rules.
The rules which generally prohibit doctors, nurses and others from involvement in capital punishment were deterring such personnel from speaking publicly or privately about alternatives to the state's lethal injection process.
Ohio has put 32 people to death since 1999, when executions resumed in the state.
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One lethal injection drug should end lawsuit
The state of Ohio's decision to replace a 3-drug lethal injection with a powerful dose of one anesthetic is raising the possibility of what may have seemed unthinkable not so long ago: a truce in the long-running legal challenges to death penalty injection across the U.S.
Ohio Attorney General Richard Cordray put it bluntly: A one-drug method would "render moot" the current injection lawsuit in his state, which raises some issues found in other states regarding the potential for pain and suffering.
The state on Friday announced its plans to put a one-drug method in place by Nov. 30, in time to carry out an execution on Dec. 8. Inmate Kenneth Biros' execution has been on hold since a botched execution of another inmate on Sept. 15 temporarily stopped capital punishment in Ohio.
At issue are the other 2 drugs used in Ohio and 35 other states , one drug that paralyzes inmates and another that stops their hearts. Inmates have long argued that the combination of the other 2 drugs could cause pain that would not be detected.
In Ohio, injection experts and defense attorneys challenging injection say a single dose of an anesthetic, similar to how veterinarians put down pets, would eliminate the potential for pain.
Opponents of the three-drug system aren't ready to concede the end of lawsuits anytime soon. But they're applauding Ohio for taking a step that other states have considered but not undertaken.
"If tomorrow every death penalty state got rid of the second 2 drugs in their protocols, certainly the Eighth Amendment concerns would be significantly alleviated," said Ty Alper, associate director of the Death Penalty Clinic at the Berkeley School of Law.
The Eighth Amendment of the U.S. Constitution prohibits cruel and unusual punishments.
Tennessee considered the 1-drug approach but rejected it in favor of keeping the 3-drug system. California also considered scaling back to one drug but concluded it might cause prisoners to go into convulsions "with unpredictable consequences."
Several states besides Ohio also have faced constitutional challenges to their 3-drug execution procedures, but Ohio is the first to drop that approach in favor of a 1-drug method.
The U.S. Supreme Court upheld the constitutionality of lethal injection last year, but Ohio's new system would be substantially different from the three-drug process the court examined.
The court also wasn't convinced by the one-drug approach.
The one-drug method, Chief Justice John Roberts said, "has problems of its own and has never been tried by a single state."
Ohio public defender Tim Young, whose office represents some inmates involved in the state lawsuit, supports use of the single anesthetic.
"There was a lot of pressure on a lot of the states for none of them to break ranks and move away from the 3-drug cocktail they all used over the years, and it takes great leadership on the part of Ohio to move away from that," Young said.
But other important questions remain, he said, chief among them: how to deal with problems accessing an inmate's veins, an issue the 1-drug system doesn't solve. It was that issue that led Ohio Gov. Ted Strickland to stop the Sept. 15 execution of Rommel Broom, sentenced to die for raping and killing a 14-year-old girl in 1984.
Broom's execution is on hold while his lawyers fight the state's attempt to try a 2nd time.
Ohio's response to Broom's problems was to create a backup that involves injecting the drug through muscles. But that's an untried system that could face its own challenges.
Also up for debate in Ohio and elsewhere: the training of the executioners and whether medical professionals should be involved.
Ohio provided no details on the backup or other aspects of the new procedure Friday.
"Ohio should be commended for trying to come up with something that will work and that they're breaking away from the other states that clearly have been using something that's been problematic," Deborah Denno, a Fordham University law professor and lethal-injection expert, said Saturday. "It's just that they have to provide more information."
Ohio has put 32 people to death since 1999, when executions resumed in the state.
Biros, 51, was sentenced to death for killing and dismembering a woman in 1991.
He acknowledged he killed Tami Engstrom, 22, but said it was done during a drunken rage.
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Ohio switches to single drug for death row
Change from 3-drug dose opens state to potential for new lawsuits
Ohio on Friday became the 1st state to adopt a procedure for lethal injections that uses one drug, a method never before tried on U.S. inmates.
The state filed papers in U.S. District Court saying it has decided to switch from a 3-drug cocktail to a single injection of thiopental sodium into a vein. A separate 2-drug muscle injection will be available as a backup.
The decision comes 2 months after an Ohio death row inmate walked away from an unsuccessful execution and subsequent executions were put on hold.
Several states have faced similar challenges, but Ohio is the 1st to drop the 3-drug approach in favor of one dose.
Richard Dieter, director of the nonprofit Death Penalty Information Center, said the method has never been attempted on humans but has been used to euthanize animals.
"Unfortunately, this is really going to be an experiment," he said.
"They're human subjects and they're not willingly part of this. This is experimenting with the unknown, and that always raises concerns."
The U.S. Supreme Court upheld the constitutionality of lethal injection last year, but Ohio's new system is substantially different from the 3-drug process the court examined. In its ruling, the court noted that the single-drug method had never been tested and wasn't being used anywhere.
Inmates could challenge
That means Ohio could be opening itself to new litigation, said Deborah Denno, a law professor at Fordham University in New York and lethal injection expert.
"The inmates who are going to be executed could challenge the constitutionality of what's being raised in Ohio," Denno said Friday.
The death penalty has been on hold in Ohio while the state developed new policies. The update follows a botched execution on Sept. 15 that was halted when executioners couldn't find a suitable vein on inmate Romell Broom.
Broom, who was convicted of kidnapping, raping and killing a 14-year old girl in 1984, complained in an affidavit following the execution attempt that his executioners painfully hit muscle and bone during as many as 18 attempts to reach a vein.
The state said in a court filing last month it was having a hard time finding medical personnel willing to consult about injection because of professional and ethical rules.
The rules which generally prohibit doctors, nurses and others from involvement in capital punishment were deterring such personnel from speaking publicly or privately about alternatives to the state's lethal injection process.
Ohio has put 32 people to death since 1999, when executions resumed in the state.
Source: MSNBC News, Nov. 15, 2009
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Judge happy with single-dose injection
Death row inmates will have no legal grounds to argue about Ohio's new lethal injection procedure, said the judge who ruled the state's 3-drug cocktail was unconstitutional.
Yesterday, Ohio Department of Rehabilitation and Corrections Director Terry Collins said the state will stop using a 3-drug cocktail to execute the state's worst offenders. Instead, a single intravenous drug will be used to execute inmates, or a 2-drug injection into the muscle if workers cannot maintain an IV in the prisoner.
The new state execution protocol is "exactly what I had thought would be constitutional," Lorain County Common Pleas Court Judge James M. Burge said.
"I suppose that's some affirmation," he said yesterday.
The state announcement came as a surprise, Burge said.
"I am surprised because the resistance to my suggestion was so strong," Burge said.
Lorain County Prosecutor Dennis Will and the Ohio Attorney General's Office contested Burge's ruling, and the appeals court ruled the issue was not ripe for those judges to consider.
"I didn't think it would ever go anywhere, but it did," Burge said. "At least those condemned persons can look forward to a painless death and I cannot imagine any constitutional challenge to this. I think it's foolproof at this point."
An attorney who once argued about the death penalty in Burge's court disagreed with the judge's assessment.
Death row inmates "of course" will file new court requests because the new method has never been used to execute a person, said attorney Jeffrey Gamso, a former legal director of the American Civil Liberties Union Ohio.
The single-drug method uses a barbituate that veterinarians use to euthanize dogs and cats, he said.
"What they've come up with is a plan and especially a backup plan that nobody's ever tested on any human being," Gamso said. "The truth is nobody's done this so we've got an experimental method of killing."
Yesterday's state announcement was not directly related to Burge's ruling. Collins and the state attorneys filed the plan as part of a federal lawsuit brought against the state by Ohio's death row inmates.
However, Burge delved into Ohio's death penalty procedure when two Lorain County capital murder defendants, Ronald McCloud and Ruben Rivera, challenged the constitutionality of the method of execution. The judge noted his June 2008 ruling would apply only to Rivera and McCloud.
Ohio used three drugs to execute convicts: sodium thiopental, an anesthetic that can cause death in a large dose; pancuronium bromide, a paralytic that prevents contortions; and potassium chloride that stops the heart.
Pancuronium bromide and potassium chloride, can cause excruciating pain, according to testimony from medical experts in Burge's hearing about McCloud and Rivera.
Ohio law guarantees the condemned inmates a quick and painless death, Burge said, so the 3-drug procedure violated the federal and state constitutional rights of inmates.
Ohio inmates could be executed quickly and painlessly by using just sodium thiopental, Burge said.
Ohio protocol orders 2 grams of sodium thiopental, which can be fatal, Burge said. However, "a single massive dose," such as the 5 grams used in California executions, "will cause certain death," Burge said in his court ruling.
In his ruling, Burge ordered the phrase "or combination of drugs" removed from the Ohio law governing executions.
Burge also ordered the Ohio Department of Rehabilitation and Corrections to stop using pancuronium bromide and potassium chloride from Ohio's lethal injection protocol.
The new execution procedure will have sodium thiopental injected intravenously, and as a backup, inject midazolam and hydromorphone in to the shoulder, thigh or buttock muscles.
"Switching to 1 drug doesn't solve the problem if you can't get the drug into the guy in the first place," Gamso said. The backup plan is also experimental because it has not been used on people before, he said.
Source: The Morning Journal, Nov. 15, 2009
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