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December 9, 2009

"New execution method unlikely to gain traction in California"

The title of this post is the headline of this notable (and disappointing) article in today's Los Angeles Times.  Here is how it starts:

An Ohio murderer put to death with the nation's first single-drug lethal injection died swiftly Tuesday, inaugurating an execution method some analysts consider more humane than the three-drug procedure used in California and 33 other states.

But the method used in Ohio is unlikely to gain traction in California, experts say, because of procedural hurdles and persistent concerns about how the drugs -- whatever their number -- are administered to the condemned.

This is significant news because California has the nation's largest death row and because its current lethal injection protocol has been in constitutional purgatory for more than three years.

Some recent related posts about Ohio's new execution method:

December 9, 2009 at 09:43 AM | Permalink


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The dangers of the three-drug protocol are overblown. The only way the guy's gonna suffer is if the KCl gets to the veins. Since the anesthetic is used first, it's highly unlikely that successful KCl delivery will happen after unsuccessful anesthetic delivery. And that's the only way it's gonna hurt.

Posted by: federalist | Dec 9, 2009 10:11:29 AM

Agreed, Heath's conjecture that IV that didn't work for the anesthetic but suddenly starts working for the pancromium bromide and potassium chloride seems almost magical. Every protocol that I've seen does in fact take care that a large dose of anesthetic is administered.

One thing I do find interesting is how the drugs turn out to be manually administered. Most non-informed discussions I've seen assume that some sort of execution machine is used. Is that just Ohio being cheap, or is it common across the states?

Posted by: Soronel Haetir | Dec 9, 2009 10:45:18 AM

What do you think is the effect of Ohio's new protocol on Baze? Since the litigants in Baze were advocating a one-drug method, and that is what Ohio is using, do death row inmates in Ohio have no basis to allege a "substantial risk of harm?" Or as we saw with Kenneth Biros, will that argument simply fail?

Posted by: Nick | Dec 9, 2009 2:08:25 PM


Baze won't have any effect on Ohio death row inmates. Baze concerned Kentucky's protocol, and people who were not involved in that litigation cannot be bound by its outcome. You are correct, though, that litigants in that case conceded that a one-drug protocol would satisfy the Eighth Amendment.

That being said, some Ohio death row inmates were involved in subsequent litigation that argued essentially the same position. Now that Ohio has adopted their proposed solution, in my view, they would be barred under the judicial estoppel doctrine from challenging the one-drug protocol. (federalist and I agree on something? wtf?) However, they would not be foreclosed from challenging the "backup" two-drug protocol that Ohio uses in the event that the one-drug protocol does not work, since that issue never came up in the litigation.

Then there's another group of Ohio death row inmates that were not involved in the litigation challenging Ohio's three-drug protocol. Those inmates can challenge the whole shebang, though I think they're highly unlikely to succeed in a challenge to the one-drug protocol aspect.

Posted by: Res ipsa | Dec 9, 2009 2:43:40 PM

-Res ispa,

I agree with you about the estoppel aspect of the inmates who already asked for the one-drug protocol. However, would you agree that that third class of inmates, assuming they challenge the new one-drug policy, would lose because a one-drug protocol can't meet the Baze test of substantial risk of harm? Isn't the one-drug policy essentially the only alternative being proffered?

Even more interesting, what about other states who continue to use the three-drug cocktail? Reading the Chief Justice's opinion again, he emphasized that no state had used the one-drug protocol yet. Does Ohio's new protocol open up a whole new spate of litigation in the other states that haven't moved to it yet?

Posted by: Nick | Dec 9, 2009 3:19:51 PM

I don't think, Nick, that there will be much to it. First of all, you have a Supreme Court case, 7-2, which held directly that the 3-drug protocol was ok. That's a pretty tough headwind. Second of all, the condemned, as a threshold matter still has to show a "substantial risk" of severe pain. How are they going to do that? Third, the one-drug protocol isn't readily available in all jurisdictions for various reasons. Over 1000 inmates have been executed by the three-drug protocol. That's a pretty good track record.

Posted by: federalist | Dec 9, 2009 3:35:39 PM


What we don't know is how many of those 1000 inmates suffered torturous pain as they were being killed. So if you're calling an execution that ends with a dead body a "successful" one, then you're right. If you're saying that 1000 dead bodies = successful CONSTITUTIONAL executions, that's not a valid, demonstrable assertion. That's the whole problem with inclusion of the paralytic in the three-drug protocol...we'd never know if the person is actually awake when the KCl hits them. Plus, death by suffocation because your diaphragm no longer works would be pretty terrifying in my view, even if Dr. Dershwitz will only say that's it would be "very uncomfortable."

Posted by: DAB reader | Dec 9, 2009 6:56:19 PM

What you need to know is that there is more to a challenge than just the type of drugs that are involved, including the drug delivery mechanism (i.e. IV access or something else) and the personnel involved. A one-drug protocol that is faultily administered can still be an 8th Amendment violation issue, so just because the plaintiffs in the litigation had cited a one-drug killing method as desireable as compared to the three-drug cocktail does not mean they would be estopped from arguing that Ohio's new protocol is still unconstitutional (even if it now uses just the one drug) because there are massive administration problems that are still unresolved in the new protocol.

Posted by: DAB reader | Dec 9, 2009 6:59:44 PM

I was unaware that they "old" execution method had gathered any traction in California.

Posted by: Dudley Sharp | Dec 10, 2009 5:13:32 AM

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