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October 1, 2009

Ohio Supreme Court refuses to block next Ohio execution

As detailed in this local story, the "Ohio Supreme Court today turned down a request to delay the scheduled Oct. 8 execution of Lawrence Reynolds." Here are more of the basics:

The public defender asked the court to halt the execution because of problems with the Sept. 15 Romell Broom lethal injection, which was halted after two hours when medical technicians could not attach IVs.

The court dismissed the appeal and denied the stay request, both on 6-0 votes. (Justice Maureen O'Connor didn't participate.)   Reynolds still has an appeal pending with the 6th U.S. Circuit Court of Appeals.

I would not be at all surprised if the Sixth Circuit does grant a stay, though I also would not be surprised if more than a few Sixth Circuit judges were hoping the Ohio Supreme Court might prevent them from having to decide whether to grant a stay.

Some recent related posts on Ohio lethal injection issues:

October 1, 2009 at 03:38 PM | Permalink

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No Delay for Ohio Execution: At Sentencing Law and Policy, Doug Berman writes that the Ohio Supreme Court has refused to delay the October 8 execution of Lawrence Reynolds Jr. Yesterday's News Scan reported that Lawrence Raymond Reynolds Jr. had... [Read More]

Tracked on Oct 1, 2009 7:40:31 PM

Comments

Doug, how would a stay grant be ok under the standard set forth in Baze?

Posted by: federalist | Oct 1, 2009 5:23:13 PM

I read Baze to suggest that repeated problems with a protocol "could demonstrate an 'objectively intolerable risk of harm' that officials may not ignore," even though "an isolated mishap alone ... does not give rise to an Eighth Amendment violation." Roberts opinion... I suspect that at least some Sixth Circuit judges will view the series of execution problems Ohio has had in recent years may take the state beyond "an isolated mishap." At the very least, the argument goes, the Sixth Circuit could/should put matters on hold until it gets sufficient assurance from state officials that what happened to Broom is unlikely to happen to anyone else.

Posted by: Doug B. | Oct 1, 2009 5:57:58 PM

"A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State’s lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives. A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard."

That seems tough to meet. Obviously, it's silly to argue that repeated needle pricks to get the insertion right is "severe pain". And that's all that's happened. It's not like there is any evidence that the severe pain complained about in Baze (i.e., the chemical veil masking the KCl burning) has happened. Thus, if all we are talking about is the pain of being poked and needled for a bit before the drugs flow, I don't think that the standard has been close to being met. Of course, I am not a Dem judge.

Posted by: federalist | Oct 1, 2009 6:05:56 PM

'Obviously, it's silly to argue that repeated needle pricks to get the insertion right is "severe pain".'

Sort of Seinfeldish-- is it a scratch or pick?

I am hack lawyer. I suppose an emt can do it better. Federalist, why don't you come over to my house for some repeated needle pricks. Then we can decide whether is is silly or severe pain. I bet I can cause you severe pain with a single needle prick. I guess it is all how you define a prick. With that in mind, look in the mirror.

Posted by: its all relative | Oct 1, 2009 10:53:23 PM

tell you what, SFB, i commit capital murder, and u can poke me wherever you want

Posted by: federalist | Oct 1, 2009 11:00:06 PM

I have not looked at the Baze opinions in a while, so I don't know whether this specific question is addressed, but it would seem that a key question would be whether "pain" includes a component of "mental anguish." For example, if this had been a gas chamber execution, and the prisoner were placed in the chamber, and then had to lie there for two hours while he could see people arguing and kicking the machine that was supposed to release the poison gas, and he heard weird mechanical whirrings and kept thinking the gas was about to drop, but then after two or three hours they just gave up and took him back to your cell, would he have suffered "severe pain"? I think that is really the question here. I.e., whether the mental anguish/torture/stress is cognizable, in addition to or apart from a more narrowly defined conception of physical pain.

Posted by: Observer | Oct 2, 2009 11:46:12 AM

This obsession with the well-being of the killer creates an enlightening contrast with the blase' acceptance of the misery of the victim.

(Of course there is the occasional standard-issue, off-the-word-processor hat-tip to the victim, but its manifest insincerity routinely does it in).

Posted by: Bill Otis | Oct 2, 2009 2:46:02 PM

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