April 8, 2010
Ohio inmate claiming execution protocol violates federal drug lawProviding more proof that no good capital punishment deed goes unpunished, this local article reports on how the next person due to be executed in Ohio is responding to the state's decision to adopt a (more humane?) one-drug execution protocol. The article is headlined "Death-row inmate: Lethal injections violate federal drug law," and here are excerpts:
An Ohio inmate scheduled to die April 20 is arguing that the state's use of lethal injection drugs violates federal prescription drug law. Death row prisoner Darryl Durr on Wednesday asked U.S. District Judge Michael Watson in Columbus to act quickly to hear Durr's claim that administering the drugs in executions is illegal.
Durr's lawsuit, filed Monday, argues the use of the drugs violates the federal Controlled Substances and Food & Drug acts. Durr says those laws prohibit the use of drugs such as lethal injection chemicals without a doctor's prescription.
The U.S. Supreme Court rejected a similar argument 25 years ago but Durr believes he's raising new issues. He was sentenced to die for raping and strangling 16-year-old Angel O'Nan in 1988.
April 8, 2010 at 03:28 PM | Permalink
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Doug, this quote: "Providing more proof that no good capital punishment deed goes unpunished" doesn't accurately describe the state of affairs. Durr would have had the claim even if Ohio hadn't gone to the one-drug method. Of course, that means that his lawsuit should be tossed. He slept on his rights. In fact, the lawyer filing it should be hit with Rule 11 sanctions.
Posted by: federalist | Apr 8, 2010 4:33:59 PM
Explain how this claim was ripe long ago. It seems to me that this is similar to a FORD claim in that such a claim is not ripe until execution is imminent. The state could have sought and maybe obtained FDA/DEA approval at any time since lethal injection was authorized in Ohio. Now that Durr's execution is a couple weeks away and the state hasn't obtained approval the claim is ripe.
Why attack the defense lawyer? The state has to comply with law just like the individual.
Posted by: k | Apr 8, 2010 5:09:20 PM
I was surprised to see that the state has to comply with law just like the individual. Does California know that distribution of dope under its medical marijuana statute violates the CSA?
In the end, not to worry. Gimmick litigation is not going to derail the DP, not in this case and not in any other. It's still a democracy, and you can't frustrate the public will when it is this heavily in favor of the DP. The lesson (or a lesson) teaching this is the fate of the healthcare bill. There was a majority against it, but not as big a majority as favors capital punishment. The Dems and Mr. Post-Partisan pushed it through anyway on a straight party line vote. Today, Gallup says, and I quote, "Americans' favorable rating of the Democratic Party has dropped to 41%, the lowest point in the 18-year history of this measure. Favorable impressions of the Republican Party are now at 42%, thus closing the gap between the two parties' images that has prevailed for the past four years."
P.S. If you know of any cases in which a lawyer has been slapped with Rule 11 sanctions in the course of representing a crimnal defendant, please send them on to me.
Posted by: Bill Otis | Apr 8, 2010 5:27:18 PM
I don't know of any cases, but it seems to me that this would be a civil case, right?
Posted by: federalist | Apr 8, 2010 5:44:42 PM
k, the claim has been available under Sixth Circuit law for a while--the Sixth Circuit has definitively rejected the "it's only ripe when execution is imminent" argument. Try again.
Posted by: federalist | Apr 8, 2010 5:46:19 PM
Yes, it would probably be filed as a civil case, although it would be in the course of representing a criminal defendant.
Posted by: Bill Otis | Apr 8, 2010 5:56:46 PM
"Yes, it would probably be filed as a civil case, although it would be in the course of representing a criminal defendant."
I hope the taxpayers are not paying for this representation.
Posted by: Kent Scheidegger | Apr 9, 2010 12:36:40 AM