Sentencing Law and Policy

How quickly will Ohio be able to get back to executions after adopting one-drug lethal injection protocol?

As noted in this prior post, roughly two months after Ohio had to stop a botched execution, the state has announced the development of a whole new lethal injection protocol.  This New York Times article provides the basic details, and also sets up the big legal question which now follows:

Breaking ranks with the 35 other states that use lethal injections to execute prisoners, Ohio on Friday became the first state to say it would switch to a single drug, rather than a three-drug cocktail, in its death penalty procedure.

Critics have long argued that using a single drug, the preferred method in animal euthanasia, is more humane than the three-drug cocktail, which involves a short-acting barbiturate to render the inmate unconscious, followed by a paralytic and then a chemical to stop the heart....

Ty Alper, associate director of the Death Penalty Clinic at the University of California, Berkeley, called the change “a significant step forward.” 

“The hope is that other states will realize that there is no need to paralyze inmates before executing them,” he said, “and that, in fact, doing so risks a horribly torturous execution.”

Richard C. Dieter, executive director of the Death Penalty Information Center in Washington, which opposes the death penalty, said that while he saw the policy change as an important step forward, he did not believe that Mr. Broom would be executed any time soon.

He said he anticipated that the new method would be delayed by extensive court challenges, with medical experts lining up to testify on both sides of whether the single-drug method is humane.  “The simple fact is that no one knows whether this method will work on humans,” he said, “and what unforeseen side effects there could be to using the drug in this way.”

It is inevitable that death row defendants will medically question and legally challenge Ohio's new one-drug lethal injection protocol.  But I do not think it is inevitable that these legal challenges should take a very long time to resolve.  As Jeff Gamso notes in this post titled "The Execution Express," Ohio officials have indicated that they are ready, willing and eager to start using the new execution protocol ASAP, and Ohio currently has an execution scheduled for each of the next seven months.

I previously predicted that it was unlikely Ohio would get back in the execution business until 2010, but I had not expected the state to roll out a new one-drug lethal ijection protocol (with a back-up plan) so quickly.  I still would be surprised if Ohio succeeds in getting its death chamber revved up again in a matter of weeks; but the federal courts who've long struggled with these issues may perhaps now will be eager to move this matter quickly now that Ohio has adopted a new execution protocol that seems to respond to the chief complaints about the old lethal injection protocol. 

Some related posts on Ohio lethal injection issues:

• Details on the botched Ohio execution attempt, issue spotting, and seeking predictions
• Split Sixth Circuit panel stays next scheduled Ohio execution
• NEWSFLASH: Ohio Governor puts all state executions on hold until at least Dec. 2009
• Ohio considering new (and novel) method of lethal injection
• "Ohio GOP lawmakers: Execution process can be fixed"
• Ohio adopting a new one-drug lethal injection protocol

Eighth Circuit affirms rejection of death row prisoners' attack on Missouri's lethal injection protocol

An Eighth Circuit panel today has ruled on an appeal concerning a constitutional attack on Missouri's execution protocol in Middleton v. Crawford, No. 08-2807 (8th Cir. Nov. 10, 2009) (available here).  Here is the unofficial summary of the ruling from the Eighth Circuit website:

Missouri death row prisoners challenging Missouri's execution protocol did not allege a sufficiently substantial risk of serious harm or a sufficiently imminent danger to state an Eighth Amendment claim, and the district court did not err, as a matter of law, in determining that the prisoners had failed to state a claim for violation of the Eighth Amendment; no error in denying motions to intervene.

"Ohio GOP lawmakers: Execution process can be fixed"

The title of this post is the headline of this notable new AP piece discussing Ohio's on-going efforts to try to fix its execution protocol.   Here are excerpts from the piece:

Two Republican lawmakers advising Ohio's Democratic governor on changes to the state's lethal injection process say it shouldn't be hard to fix the system.  The lawmakers, both proponents of capital punishment, are among state legislators helping Gov. Ted Strickland find medical personnel willing to help the state improve its injection process.  Both say they got involved to make sure recent problems with lethal injection don't lead to attempts to eliminate the death penalty.

"We want to make sure our well-established judicial rights to administer capital punishment in appropriate cases are preserved and will not be defeated by new and ingenious means of dodging the executioner," Sen. Bill Seitz, of Cincinnati, said Wednesday.  Seitz said he's talked to lawyers and doctors but has yet to find anyone willing to come forward.  But his conversations have suggested changes Ohio could adopt, ranging from using a retired doctor during executions to requiring that inmates drink enough liquids before an execution to keep their veins healthy.

Sen. Tim Grendell has contacted current and retired doctors looking for advice. "I find it difficult to believe there isn't a functional solution to this problem," said Grendell, of Chesterland.

The death penalty is temporarily on hold in Ohio while the state develops the 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....

Also Wednesday, the Ohio Supreme Court set two new execution dates.  The court set a May 13 execution date for Michael Beuke, 47, convicted of the 1983 murder of Robert Craig, a man he met while hitchhiking on Interstate 275 in southwest Ohio.  The court also set a June 10 execution date for Richard Nields, 59, sentenced to die for the 1997 death of his girlfriend, 59-year-old Patricia Newsome, at their home in Finneytown in southwest Ohio.

Given that Ohio does not seems to be making much progress on a new execution protocol, and given that litigation seems inevitable whenever a new protocol is adopted, I would not bet on these new execution dates holding.  But if there is a persistent will, I suspect Ohio will eventually find a way to get back in the business of executions.

Ohio having a hard time finding doctors to help with revising execution protocol

My local paper has this new piece, headlined "Ohio struggles to find doctors to offer execution advice," which reports on the challanges the state is facing in getting expert medical help with its review of its lethal injection protocol. Here is how the piece starts:

Finding medical professionals willing to advise Ohio on the best way to put condemned inmates to death is proving difficult because of ethical and professional rules, the state's top attorney said.  The rules -- which generally prohibit doctors, nurses and others from involvement in capital punishment -- are deterring those professionals from speaking publicly or privately about alternatives to the state's lethal injection process, Attorney General Richard Cordray said.

"A small number of promising leads have emerged, but identifying qualified medical personnel willing and able to provide advice to the state regarding lethal injection options continues to be challenging and time-consuming," Cordray said in the Friday filing in U.S. District Court.

Executions are on hold in Ohio while the state develops new injection policies following a Sept. 15 execution that was stopped because the inmate had no usable veins.  The state has reached out to judges, police and lawmakers for help trying to find medical professionals willing to talk to the state, according to the filing written on Cordray's behalf by Charles Wille, head of Cordray's death penalty unit. Cordray also said five lawmakers he didn't identify have agreed to try to find medical staff to help.

The state has a two-year, $33,200 contract with just one doctor, Mark Dershwitz of Massachusetts, a lethal injection expert who frequently testifies on behalf of states in lethal injection cases. Dershwitz, an expert witness for Ohio at a March trial challenging Ohio's injection system, is the only doctor the state is currently talking to, said Julie Walburn, a prisons department spokeswoman.

Paging Dr. Jack Kevorkian ..., Doctor, it seems that you are needed in Ohio. 

New stay means Ohio executions almost certain not to resume until at least 2010

This new New York Times article, which is headlined "Judge Delays Another Ohio Execution," highlights that my prediction that Ohio will not even close to executing anyone soon is looking pretty solid.  Here are the basics:

A federal judge has indefinitely delayed an execution scheduled for Dec. 8, the fourth execution to be postponed in Ohio since technicians failed for two hours last month to administer lethal drugs to a man convicted of murder and rape.

The execution of Kenneth Biros, 51, convicted of a 1991 murder and attempted rape, was stayed on Monday to allow the state attorney general and defense lawyers to gather more information about Ohio’s lethal injection protocol. The protocol has come under question since the failed execution of Romell Broom on Sept. 15. The judge, Gregory Frost, also indefinitely delayed the second effort to execute Mr. Broom....

Earlier this month, Gov. Ted Strickland postponed the executions of the two men scheduled to die before Mr. Biros, Lawrence R. Reynolds Jr. and Darryl Durr, until spring, to give corrections officials more time to develop backup procedures if another problem occurs in administering lethal drugs by the normal method of inserting intravenous lines into veins in a prisoner’s arms or legs. The state had expected to have new procedures in place in time to execute Mr. Biros on Dec. 8.

Richard Dieter, executive director of the Death Penalty Information Center in Washington, said the repeated postponements and rationale behind them effectively equaled a moratorium on executions in Ohio. “There has been a recognition from the courts and the governor that the issues to be resolved are complex and are going to take time and that no executions should occur until those issues are resolved,” Mr. Dieter said.

A spokeswoman for the governor said a review of execution procedures continued. A spokeswoman for Richard Cordray, the attorney general, said the state was reviewing its legal options.

Some related posts on Ohio lethal injection issues:

• Details on the botched Ohio execution attempt, issue spotting, and seeking predictions
• Will (and when and how will) SCOTUS have to weigh in on Ohio's desire to try execution again?
• Federal hearing about constitutionality of Ohio's re-execution attempt pushed back months
• Split Sixth Circuit panel stays next scheduled Ohio execution
• NEWSFLASH: Ohio Governor puts all state executions on hold until at least Dec. 2009
• Alabama able to carry out another uneventful lethal injection execution
• Ohio considering new (and novel) method of lethal injection

"Lethal Injection Draws Scrutiny in Some States"

The title of this post is the headline of this article from today's Wall Street Journal.  Here are excerpts from an effective article:

Despite the many arguments over whether criminals should be put to death, states thought they had settled at least one matter: the best way to carry out an execution. Largely gone are the electric chairs, firing squads and hangman's nooses of yore.  Most of the 35 states where capital punishment is legal require the use of lethal injection -- a combination of chemicals inserted intravenously. In a handful of states, condemned inmates can request that another method, in most cases electrocution, be used.

But a recent botched execution has triggered debate over whether alternative approaches to injections should be considered....

Some experts say states have bypassed the most reliable execution methods to save face with the public. Deborah Denno, a Fordham University law professor who has written articles on capital punishment, believes firing squads comprised of professional shooters could handle executions more quickly and flawlessly, though she concedes that cultural distaste with firing squads means it is unlikely to be widely adopted. "We've known for a long time that there are better methods, but states don't want to look bad and horrifying," she says.  The last firing squad execution took place in Utah in 1996....

Maryland has suspended its use of the death penalty while a state commission reviews whether lethal injection causes undue pain and whether prison staff are sufficiently trained to carry out the process. Executions fall to correctional employees because physicians refuse to participate, citing their oath to "save lives, not take lives," says Democratic state Sen. Paul Pinsky, co-chairman of the commission and an opponent of the death penalty.  Two other states, California and North Carolina, also have suspended lethal injection while the procedure is reviewed, effectively imposing a moratorium on the death penalty in those states.

How will Ohio's lethal injection review impact other state execution protocols?

The question in the title of this post is prompted by this new piece in the Washington Post, which is headlined "Execution Methods Examined: Ohio's Review After Botched Injection May Have Wide Impact." The piece mainly reviews the basic facts surrounding Ohio's failed execution attempt last month and the subsequent delay of other scheduled Ohio executions.  But the piece also speculates that what happens in Ohio could have ripples elsewhere:

[Ohio Governor Ted] Strickland's decision to delay two more executions and review the way Ohio has executed 32 prisoners since 1999 could influence the way condemned prisoners elsewhere are put to death, according to experts on the death penalty.

"Everything's on the table at this point," said Julie Walburn, spokeswoman for the Ohio corrections department, which has overseen two similar situations since 2006.  In the other cases, technicians eventually found veins, and the prisoners were executed.

Walburn said the Strickland administration is all but certain to revise its protocols to deal with cases like Broom's.  State officials are also analyzing the effectiveness of the existing three-drug combination and other ways to kill a person with a lethal injection.  "We are taking a very studied approach.  This is a complex issue, and we are certainly not going to rush our examination," Walburn said, explaining that Strickland is prepared to delay the scheduled Dec. 8 execution of Kenneth Biros if the new rules are not ready.

"Other states will be watching," said Richard Dieter, executive director of the Death Penalty Information Center, who reported that several states, including Maryland, are working on lethal injection protocols....

Ohio's "troubling difficulties" in executing Broom and two other inmates, as the 6th Circuit put it, have not led any other governors to delay executions.  When Alabama executed Max Payne on Thursday, he became by Dieter's count the 40th person in the United States to die by lethal injection this year.

Though lots might be said about the Post story, my first reaction to Julie Walburn's comments is to suspect it may now be a realllllllllly loooong time before Ohio gets around to executing a condemned prison again.  Indeed, I am now thinking there is a decent chance Ohio will not attempt another execution until deep into 2010 and maybe not even then.

Some new and old related posts on Ohio developments and other lethal injection issues:

• Details on the botched Ohio execution attempt, issue spotting, and seeking predictions
• Will (and when and how will) SCOTUS have to weigh in on Ohio's desire to try execution again?
• Federal hearing about constitutionality of Ohio's re-execution attempt pushed back months
• Split Sixth Circuit panel stays next scheduled Ohio execution
• NEWSFLASH: Ohio Governor puts all state executions on hold until at least Dec. 2009
• Alabama able to carry out another uneventful lethal injection execution
• Ohio considering new (and novel) method of lethal injection
• Are botched executions inevitable?
• Examining why states have not tried improving execution protocols
• Can doctors block all US lethal injections (and indirectly abolish the death penalty)?
• My debatable PENNumbra views on Baze

Alabama able to carry out another uneventful lethal injection execution

Perhaps Ohio officials need to take a trip to Texas or Alabama, because these states have not seemed to have had any trouble with their lethal injection protocols.  As detailed in this local article, headlined "Inmate put to death for 1992 murder," another seemingly uneventful lethal injection execution was completed last night in Alabama:

Alabama death row inmate Max Payne was executed by lethal injection Thursday for the 1992 kidnapping, robbery and killing of Cullman store owner Braxton Brown.

Payne, 38, died at 6:25 p.m. as his two sisters and other relatives wept quietly in the witness viewing room. Payne made a hand sign that means "I love you" to his relatives before losing consciousness. Asked if he had any last words, Payne said, "I just want to tell my family I love them."

The heavyset, balding Payne, strapped to a gurney in the execution chamber, made his last statement after warden Grantt Culliver read the execution order issued by the Alabama Supreme Court.

Once the lethal injection began, Payne gestured to family members and spoke quietly with prison chaplain Chris Summers, who was standing a few feet away. At one point Summers grabbed Payne's hand and patted him on the knee. Payne closed his eyes, pinched his lips and seemed to take a deep breath. Then he was still....

Payne's lethal injection brings Alabama's 2009 execution total to six, the most in a single year in the state since the U.S. Supreme Court allowed capital punishment to resume in the 1970s.  Until now, the most in a single year was four, in 2005, 2000 and 1989.

Texas, meanwhile, appears to have six more executions scheduled before even Thanksgiving, after having already executed 18 persons this year.  Interestingly, though, the last two executions scheduled in Texas were stayed, so maybe these 2009 execution numbers will change.  Nevertheless, so far there seems to be little reason to conclude or expect that the lethal injection problems plaguing Ohio are slowing down the machinery of death in other states that regularly execute their condemned.

Some new and old related posts on Ohio developments and other lethal injection issues:

• Details on the botched Ohio execution attempt, issue spotting, and seeking predictions
• Will (and when and how will) SCOTUS have to weigh in on Ohio's desire to try execution again?
• Federal hearing about constitutionality of Ohio's re-execution attempt pushed back months
• Split Sixth Circuit panel stays next scheduled Ohio execution
• NEWSFLASH: Ohio Governor puts all state executions on hold until at least Dec. 2009
• Ohio considering new (and novel) method of lethal injection
• Are botched executions inevitable?
• Examining why states have not tried improving execution protocols
• Can doctors block all US lethal injections (and indirectly abolish the death penalty)?
• My debatable PENNumbra views on Baze

More details on Ohio's consideration of novel lethal injection protocols

This new article from the Columbus Dispatch, which is headlined "Ohio may overhaul execution policies," provides more details on Ohio's efforts to pioneer an improved lethal injection protocol:

Ohio prison officials are considering a major overhaul of death-penalty procedures that might include changing out such key elements as drugs and an execution team. Injecting deadly drugs into muscle and bone, using a single, more powerful drug, or using an entirely different combination of drugs are options being reviewed.

Prison officials are consulting with Dr. Mark Dershwitz, a University of Massachusetts professor of anesthesiology who testified for the state last year as a paid expert witness in a lethal-injection lawsuit in federal court. He has consulted with several states on lethal-injection litigation....

Ohio would become the first state to make major changes in a three-drug execution process that was essentially copied by 35 states from Oklahoma, where it was developed by an anesthesiologist in 1977....

The current execution team at the Southern Ohio Correctional Facility near Lucasville includes emergency medical technicians. However, they probably would not be qualified to perform some of the invasive methods being considered....

There is no time frame for developing the new protocol, Walburn said. The execution of Kenneth Biros, a convicted killer from Trumbull County, is scheduled for Dec. 8 but could be delayed by Strickland.

Richard Dieter, executive director of the Washington-based Death Penalty Information Center, said it is "significant that they're looking at a major overhaul of the process. This has been a long time coming." California and Maryland are looking at protocol and procedures changes, but Dieter said no other state is considering the major revamp contemplated by Ohio officials. "It's a fresh start," he said. "Maybe there are alternatives that have less risks."

Those who follow the modern debates and litigation over lethal injection protocols likely know that many opponents of the standard three-drug protocol claim that they are not seeking complete abolition, but just a better and less-risky lethal injection process.  Ohio's serious (and urgent) desire to develop and adopt an improved protocol should provide an opportunity for these opponents to show their true colors. 

If opponents of lethal injection were primarily complaining just about problems with the traditional three-drug protocol, these folks should be seriously and actively involved in helping Ohio develop and adopt an improved execution protocol.  But I will be seriously (and pleasantly) surprised if anyone who assailed the old lethal injection protocol will now provide help or advice to Ohio in developing and adopting a new and improved execution method.  Call me a cynic, but I have always believed that debates and litigation over lethal injection protocols have been just a form of shadow-boxing against the backdrop of a debate over the death penalty more broadly.

Some recent related posts on Ohio lethal injection issues:

• Ohio struggling, legally and practically, with effort to execute offender
• Details on the botched Ohio execution attempt, issue spotting, and seeking predictions
• Will (and when and how will) SCOTUS have to weigh in on Ohio's desire to try execution again?
• Federal hearing about constitutionality of Ohio's re-execution attempt pushed back months
• Split Sixth Circuit panel stays next scheduled Ohio execution
• NEWSFLASH: Ohio Governor puts all state executions on hold until at least Dec. 2009
• Ohio considering new (and novel) method of lethal injection

Some older posts on the and the broader lethal injection protocol debate:

• Are botched executions inevitable?
• Examining why states have not tried improving execution protocols
• Can doctors block all US lethal injections (and indirectly abolish the death penalty)?
• My debatable PENNumbra views on Baze
• Is it time to seriously consider alternatives to lethal injection?
• New study confirms we do not treat murderers like dogs
• Notable new paper on doctor involvement in executions
• The still on-going struggle over lethal injection procedures in Missouri
• What might 2009 have in store for . . . the death penalty in the US?

Ohio considering new (and novel) method of lethal injection

This new AP article, which is headlined "State might try new lethal-injection sites," suggests that Ohio is seriously talking about a whole new approach to lethal injection in the wake of its failed execution attempt last month.  Here are some of the particulars:

Ohio is considering administering lethal drugs into inmates' bone marrow or muscles as an alternative to -- or a backup for -- the traditional intravenous execution procedure, a prisons department spokeswoman said today. "Everything is on the table" as the state researches ways to adjust its death chamber procedure in the wake of a failed execution last month, when officials couldn't locate suitable veins on inmate Romell Broom, said Ohio Department of Rehabilitation and Correction spokeswoman Julie Walburn....

The changes could include a different procedure to access veins, the use of a device to inject lethal chemicals directly into an inmate's bone marrow, or injection into muscles....

Richard Dieter, director of the nonprofit Death Penalty Information Center, said he isn't aware of any other states that have considered, or currently use, injections into bone marrow or muscle as part of their protocol....

Ohio officials also are exploring whether to keep the state's three-drug regimen -- a sedative, a paralyzing agent and a chemical to stop the heart -- or to rely on a single drug, Walburn said. It could be used as a backup if officials encounter difficulty locating veins, or as a new procedure to replace the old one.

It would, of course, be very significant if Ohio were to start to pioneer a whole new approach to lethal injection protocols.  And such a new approach would, in all likelihood, prompt a whole new round of constitutional litigation of the protocol's constitutionality.

Some recent related posts on Ohio lethal injection issues:

• Ohio struggling, legally and practically, with effort to execute offender
• Details on the botched Ohio execution attempt, issue spotting, and seeking predictions
• Will (and when and how will) SCOTUS have to weigh in on Ohio's desire to try execution again?
• Federal hearing about constitutionality of Ohio's re-execution attempt pushed back months
• Ohio Supreme Court asked to stay next scheduled execution in wake of botched attempt
• Ohio Supreme Court refuses to block next Ohio execution
• Split Sixth Circuit panel stays next scheduled Ohio execution
• NEWSFLASH: Ohio Governor puts all state executions on hold until at least Dec. 2009

NEWSFLASH: Ohio Governor puts all state executions on hold until at least Dec. 2009

Responding to both the recent failed execution efforts in the Broom case and the stay entered by a federal court today in the Reynolds case, Ohio's Governor has put a halt to all executions in the state until at least 2010. These breaking details are reported in this local press report, which starts this way:

Gov. Ted Strickland issued reprieves Monday for two death row inmates scheduled for execution in coming weeks. Te move came after a federal court issued a stay in the case of Lawrence Reynolds, citing ongoing legal arguments following the failed execution of Romell Broom last month.

Under Strickland's reprieves, Reynolds would face a March 9 execution, while Darryl Durr's execution would be set for April 20. Reynolds was to face the death penalty on Thursday for murdering a Cuyahoga Falls woman in 1994. Durr, convicted in a Cuyahoga County rape and murder of a teen-ager in 1988, was scheduled for lethal injection in November.

"Since Sept. 15, the Department of Rehabilitation and Corrections has been working to establish a back-up or alternative lethal injection protocol in the unlikely event similar circumstances arise when implementing the death penalty in the future," Strickland said in a released statement. "While the department has made progress, 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.  Therefore, I have decided to issue two reprieves ... I have asked Director Collins to continue working to ensure the death penalty is administered fairly and effectively here in Ohio."

Strickland also left open the possibility of issuing additional reprieves, though the two issued Monday did not cover Kenneth Biros, scheduled for execution in December for a brutal 1991 murder in Trumbull County. "While I believe that the department will be able to complete its research and evaluation, select an appropriate back-up or alternative lethal injection procedure, and conduct any training or other preparation necessitated by that selection by the time of Mr. Biros; scheduled execution in December, I will issue any additional reprieves I deem necessary to the appropriate administration of executions under Ohio law," Strickland wrote.

The full statement by Governor Strickland can be found at this link.

Some recent related posts on Ohio lethal injection issues:

• Ohio struggling, legally and practically, with effort to execute offender
• Details on the botched Ohio execution attempt, issue spotting, and seeking predictions
• Will (and when and how will) SCOTUS have to weigh in on Ohio's desire to try execution again?
• Federal hearing about constitutionality of Ohio's re-execution attempt pushed back months
• Ohio Supreme Court asked to stay next scheduled execution in wake of botched attempt
• Ohio Supreme Court refuses to block next Ohio execution
• Split Sixth Circuit panel stays next scheduled Ohio execution

UPDATE:  I've tweked this post title to reflect the fact that Gov Strickland's statement leave open the possibility that Ohio will be able to get its execution protocol straightened out by Dec. 2009.  Realistically, though, especially given that the federal court hearing on the failed execution attempt is not scheduled until Nov. 30, I will be quite surprised if Ohio executes anyone before winter turns to spring in 2010.

Split Sixth Circuit panel stays next scheduled Ohio execution

As I predicted in this recent post after the Ohio Supreme Court refused a stay, this morning the Sixth Circuit has granted a stay of the scheduled October 8 execution date for Ohio death row inmate Lawrence Reynolds.  Not surprisingly, the opinions supporting the stay stress the failed execution attempt in Ohio last month.

The composition of the majority (Judges Cole and Martin) granting the stay in Reynolds v. Strickland, No. 08-4144 (6th Cir. Oct. 5, 2009) (available here), as well as the extended dissent by Judge Sutton, leads me to think that en banc consideration of this matter is a real possibility.  But whether there will be a en banc change of position or subsequent Supreme Court consideration is hard to predict.  Stay tuned.

Some recent related posts on Ohio lethal injection issues:

• Ohio struggling, legally and practically, with effort to execute offender
• Details on the botched Ohio execution attempt, issue spotting, and seeking predictions
• Will (and when and how will) SCOTUS have to weigh in on Ohio's desire to try execution again?
• Federal hearing about constitutionality of Ohio's re-execution attempt pushed back months
• Ohio Supreme Court asked to stay next scheduled execution in wake of botched attempt
• Ohio Supreme Court refuses to block next Ohio execution

UPDATE:  The local AP now has this report on the ruling.  In future coverage, I will be interested to see and here how Ohio's Attorney General and other political players react to a ruling that could be, in effect, the imposition of a de facto moratorium on executions in Ohio in the forseeable future.

NY Times editorial on "Botched Executions"

The New York Times this today has this new editorial, headlined "Botched Executions." Here is how it starts and ends:

Ohio’s attempt to execute Romell Broom last month by lethal injection was the death penalty at its most barbaric. Even after that horribly botched failed execution, the state wants to continue putting people to death, starting next week. Ohio should at the very least call a moratorium so it can ensure that it has the technical competence to put people to death humanely. But every state should use this shameful moment to question whether they ought to be putting people to death at all....

We have long believed that capital punishment is wrong in all cases, but even those who support it should not accept cruel procedures. Ohio should halt any further executions until it conducts a comprehensive study of what is going wrong in its administration of lethal injection and what can be done to ensure that a travesty like Mr. Broom’s attempted execution does not happen again.

Ultimately, every state should pause and consider that ending the life of a healthy man or woman is no simple matter and that even in the 21st century, executioners do not have their job down to anything like a science. No government should put people to death until it can show that the condemned person will not be racked with pain, catch on fire or prove so difficult to kill, as in Mr. Broom’s case, that the executioners are forced to try again another day.

Some recent related posts on Ohio lethal injection issues:

• Ohio struggling, legally and practically, with effort to execute offender
• Details on the botched Ohio execution attempt, issue spotting, and seeking predictions
• Will (and when and how will) SCOTUS have to weigh in on Ohio's desire to try execution again?
• Federal hearing about constitutionality of Ohio's re-execution attempt pushed back months
• Ohio Supreme Court refuses to block next Ohio execution

Ohio Supreme Court asked to stay next scheduled execution in wake of botched attempt

As detailed in this AP article, the Ohio death row inmate who is scheduled to be executed (for the first time) next week has today "asked the Ohio Supreme Court to delay his upcoming execution in light of problems with the state's last scheduled lethal injection."  Here are the basics:

Attorneys for Lawrence Reynolds fileda motion with the state's highest court Monday, days after a similar filing with a federal appeals court.

Reynolds' execution scheduled for Oct. 8 would be the first since the state's unsuccessful attempt at putting Romell Broom to death on Sept. 15....

Reynolds' lawyers argue that Ohio's lethal injection system should be investigated before he goes to the death chamber.

UPDATE:  This local coverage, headlined "Freeze on lethal injections sought: Courts are asked for a moratorium after IV problems," starts this way:

The ghosts of problem executions past combined with an aborted attempt two weeks ago are haunting state prison officials as death-penalty foes argue that Ohio's lethal injections should be halted, at least temporarily.

"Other states watching Arkansas lethal injection case"

The title of this post is the headline of this AP article discussing arguments yesterday in the Eighth Circuit.  Here is how it starts:

An attorney for four Arkansas death row inmates who are challenging the state's lethal injection procedure told a federal appeals court panel Thursday that even with new methods in place, the process can cause pain and suffering.

A three-judge panel of the 8th U.S. Circuit Court of Appeals heard the case filed on behalf of convicted killers Don William Davis, Jack Harold Jones Jr., Terrick Nooner and Frank Williams Jr.

Other death penalty states are watching the outcome, which isn't expected for several weeks. In fact, an attorney for Missouri death row inmate Reginald Clemons was in court to observe. The issue also drew attention earlier this month after a failed attempt to execute an inmate in Ohio.

Lethal injection had been on hold across the country until a Supreme Court ruling last year in a case out of Kentucky about whether the three-drug combination used in executions causes unconstitutional pain and suffering. Roughly three dozen states use the combination — an anesthetic, a muscle paralyzer and a substance to stop the heart.

After that ruling, Arkansas prison officials introduced new procedures. Joe Cordi of the Arkansas Attorney General's office told the panel the new protocol is thorough in trying to ensure that the inmate doesn't suffer. But the attorney for the inmates, Scott Braden, said concerns remain both about the written procedures and how they would be carried out, especially because Arkansas has a history of botched executions.

Seom recent related posts on lethal injection litigation:

• Ohio struggling, legally and practically, with effort to execute offender
• Details on the botched Ohio execution attempt, issue spotting, and seeking predictions
• Will (and when and how will) SCOTUS have to weigh in on Ohio's desire to try execution again?
• Federal hearing about constitutionality of Ohio's re-execution attempt pushed back months
• Split Sixth Circuit panel upholds Tennessee's lethal injection procedures
• Legal challenge to Washington's lethal injection methods turned away
• Notable new paper on doctor involvement in executions
• Three months after Baze, has anything really changed?
• Did the Supreme Court's work in Baze matter at all?

Federal hearing about constitutionality of Ohio's re-execution attempt pushed back months

This local AP story, which is headlined "Second attempt to execute Ohio killer further delayed," documents why the state of Ohio is very unlikely to get another chance to execute Romell Broom anytime soon.  Here are the basics from the AP story:

A federal judge on Tuesday further delayed an unprecedented second attempt to put a condemned rapist and killer to death by lethal injection. U.S. District Court Judge Gregory Frost's order, which pushes a hearing on the fate of inmate Romell Broom from next week to Nov. 30, was unopposed by the state.  It gives the state and Broom's attorneys time to gather more information to argue over trying to execute Broom again for the 1984 rape and murder of a teenage girl he abducted at knifepoint in Cleveland.

Because this initial federal court hearing won't take place until late November (and especially given the state seems in no hurry now to try again to execute Broom), it is quite unlikely that the district court will even issue a ruling before next year and the inevitable appeal to the Sixth Circuit and the Supreme Court could easily extend the Broom case deep into 2010 and beyond.

The really interesting and uncertain question going forward concerns what will happen in other scheduled Ohio executions in the weeks and months ahead.  I believe there are three more executions scheduled in Ohio before the end of 2009.  Especially now that the litigation over Broom's status has been put on a slower track, the hottest lethal injection fights are now likely to focus on the defendants who are scheduled to be executed in October and November.

Related posts on botched Broom execution attempt:

• Ohio struggling, legally and practically, with effort to execute offender
• More on Ohio's execution troubles and what could happen next
• Details on the botched Ohio execution attempt, issue spotting, and seeking predictions
• UK advocate saying botched Ohio execution attempt should be US turning point on death penalty
• Notable reactions in national and local papers in response to Ohio's "unexecuted"
• Will (and when and how will) SCOTUS have to weigh in on Ohio's desire to try execution again?
• Latest litigation update surrounding Ohio's unexecuted and re-execution plans (UPDATED with stay details)
• Specifics and predictions concerning stay of Ohio's effort to re-execute Broom

UPDATE:  I noticed here these three telling comments, which were the first responses to this story on Columbus Dispatch website:

Comment 1: November 30th?  Great ruin this poor victim's families holiday season.  One I might add that she hasn't been able to enjoy since 1984.  This scum needed to die way before now.  He has had too many years on this planet.

Comment 2: I find this situation unbelievable, An I/O (interosseous) device is painless, quick and simple to use.  Used everyday in prehospital and clinical settings with great success.  Designed to use when an IV placement is difficult.  Delaying this execution is cruel and unusual punishment for the convict and more so, for the family.

Comment 3: This is astounding!  Put his rear in the chair or line him up on a wall and have target practice with him!!!  What he is 'going through' is nothing compared to the cruel and unusual punishment he put an innocent little girl through!  Heck, if I had access to him, I'd do it myself!!

"Dying in Vein: Is subjecting an inmate to a failed execution cruel and unusual punishment?"

The title of this post is the headline of this new piece appearing on-line at Newsweek.  Here is how it begins:

Can a vein save a convicted killer?  It the case of Romell Broom — it might. Broom was sentenced to death for raping and murdering 14-year-old Tryna Middleton on Sept. 21, 1984. Broom isn't supposed to be alive to witness the 25th anniversary of Middleton's death — but he is.  Last Tuesday, the execution team at the Southern Ohio Correctional Facility spent several hours trying unsuccessfully to find a viable vein for a lethal injection. Now, Ohio is faced with the difficult task of determining whether it can try to execute Broom a second time, after it botched the first attempt.

Related posts on botched Broom execution attempt:

• Ohio struggling, legally and practically, with effort to execute offender
• More on Ohio's execution troubles and what could happen next
• Details on the botched Ohio execution attempt, issue spotting, and seeking predictions
• UK advocate saying botched Ohio execution attempt should be US turning point on death penalty
• Notable reactions in national and local papers in response to Ohio's "unexecuted"
• Will (and when and how will) SCOTUS have to weigh in on Ohio's desire to try execution again?
• Latest litigation update surrounding Ohio's unexecuted and re-execution plans (UPDATED with stay details)
• Specifics and predictions concerning stay of Ohio's effort to re-execute Broom

Specifics and predictions concerning stay of Ohio's effort to re-execute Broom

This local article, headlined "Inmate's execution delayed for 10 days," provides more of the details and debate surrounding Ohio's efforts to try to execution again Romell Broom after its botched first attempt:

A second attempt to execute condemned killer Romell Broom, who says he endured "torture" and cried in pain during the first aborted try, was delayed yesterday under an agreement between Broom's attorneys and the state....

The order expires at 11:59 p.m. Sept. 28. U.S. District Judge Gregory L. Frost has set a hearing for 9 a.m. that day to consider a request by Broom's attorneys for a preliminary injunction against the execution. Broom attorney Timothy Sweeney of Cleveland said yesterday that he doesn't expect the execution will go forward "any time in the near future."...

The Ohio Association of Criminal Defense Attorneys sent a letter to Strickland on Thursday calling for a moratorium on the death penalty, and the governor's office said it has received 30 calls and 110 e-mails mentioning a moratorium....

Cuyahoga County Prosecutor Bill Mason opposed delaying Broom's execution, saying Broom has not been subjected to pain greater than any other prisoner who had problems with an IV. He also cited the need for finality for the victims.

As detailed by this postat Crime & Consequences, Kent Kent Scheidegger is troubled not only with the stay but with how the Ohio AG is handling this matter:

[The stay is] not a surprise, but the Ohio AG is going to get the stay lifted, by the Supreme Court if necessary, right? No! They actually consented to it! "Attorneys for the state consented to the request for a delay from Broom's attorneys, who will argue that the pain Broom experienced during the aborted attempt violates a constitutional ban on cruel and unusual punishment."

And what is this horrible torture? "Broom told his attorneys he was pricked as many as 18 times Tuesday as prison staff tried to find a suitable vein."

Poor baby! He suffered 18 pinpricks!  Remember what this guy did. "Broom was convicted in the 1984 rape and murder of a 14-year-old girl after abducting her at knifepoint while she was walking home from a football game with friends." Instead of calling the pinpricks the preposterous basis for further delay that it is, the Ohio AG consents?!  What are they smoking?

For anyone eager to keep up with all of the particulars, be sure to check out this great page at Lethal Injection.org, which has posted a lot of the legal papers and commentary surrounding the Broom case.

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• Ohio struggling, legally and practically, with effort to execute offender
• More on Ohio's execution troubles and what could happen next
• Details on the botched Ohio execution attempt, issue spotting, and seeking predictions
• UK advocate saying botched Ohio execution attempt should be US turning point on death penalty
• Notable reactions in national and local papers in response to Ohio's "unexecuted"
• Will (and when and how will) SCOTUS have to weigh in on Ohio's desire to try execution again?
• Latest litigation update surrounding Ohio's unexecuted and re-execution plans (UPDATED with stay details)

Latest litigation update surrounding Ohio's unexecuted and re-execution plans (UPDATED with stay details)

This AP article provide the latest, but certainly not the last, update on the litigation surrounding Ohio's botched execution attempt this past Tuesday and its plans to try again this Tuesday.  Here are a few highlights:

An attorney for an Ohio inmate whose lethal injection failed this week asked the U.S. Supreme Court on Friday to halt an unprecedented second execution attempt, and cited in a separate affidavit the inmate's claims that executioners hit muscle and bone when they tried to find a vein suitable for injection.

Tim Sweeney, an attorney for Romell Broom, also filed lawsuits in federal district court and in the Ohio Supreme Court in Columbus on Friday arguing that a second execution attempt, scheduled for Tuesday, would violate Broom's civil rights. If unsuccessful in achieving clemency for Broom, Sweeney will argue that he shouldn't be executed until a new procedure can be put in place that ensures what happened on Tuesday won't be repeated. And trying again only a week later would be "unconscionable," Sweeney said....

In an affidavit from Broom that was to be submitted as evidence in the federal district court filing, Broom said officials first tried three separate times to access a suitable vein in the middle of both arms. He said nurses told him to take a break after those six attempts, after which the nurse tried twice to access veins in the left arm.

"She must have hit a muscle because the pain made me scream out loud," Broom said. "The male nurse attempted three times to access veins in my right arm. The first time the male nurse successfully accessed a vein in my right arm. He attempted to insert the IV, but he lost it and blood started to run down my right arm. The female nurse left the room. The correction officer asked her if she was OK. She responded, 'No' and walked out.

"The death squad lead made a statement to the effect that this was hard on everyone and suggested that they take another break."

Officials later moved to Broom's feet to find an accessible vein. "During this attempt, the needle hit my bone and was very painful. I screamed," Broom said in the affidavit....

On Friday, the American Civil Liberties Union of Ohio filed a public records request with the state in an attempt to learn information about the preparation for the first attempt, details about the attempt and information about preparations for the next scheduled attempt. The Ohio Association of Criminal Defense Lawyers sent Strickland a letter Thursday asking him to place a moratorium on Ohio executions given Tuesday's events.

A prisons spokeswoman said Thursday that officials at the Southern Ohio Corrections Facility where Broom is being kept in a cell in the infirmary in preparation for next week's attempt are monitoring how much he's drinking. Dehydration could make it more difficult to find veins, but the spokeswoman said there's no evidence that's what caused Tuesday's problems. In the affidavit, Broom said that on Monday, the day before the execution attempt, he drank seven cups of coffee, five cups of water and three cups of Kool-Aid.

Candidly, I will be a bit surprised if we make it though the weekend without some kind of stay ordered to prevent the state of Ohio from starting the execution process on Monday.  It is my understanding that an execution process gets started a day or so before the actual scheduled execution (including the ordering of a last meal and all), so I will be surprised if all state and federal courts wait until Monday to rule on a stay.  Though perhaps the state courts are hoping the federal courts will intervene first, and vice versa.  In short, as I like to say, stay tuned.

Related posts on botched Broom execution attempt:

• Ohio struggling, legally and practically, with effort to execute offender
• More on Ohio's execution troubles and what could happen next
• Details on the botched Ohio execution attempt, issue spotting, and seeking predictions
• UK advocate saying botched Ohio execution attempt should be US turning point on death penalty
• Notable reactions in national and local papers in response to Ohio's "unexecuted"
• Will (and when and how will) SCOTUS have to weigh in on Ohio's desire to try execution again?

UPDATE:  This new New York Times piece provides the latest news, including the details of a stay:

An Ohio prisoner whose execution was halted on Tuesday, and then immediately rescheduled for next week, because technicians were unable to inject him with lethal drugs won a stay of execution on Friday.

The stay, issued by Judge Gregory L. Frost of the Federal District Court in Columbus, expires at 11:59 p.m. on Sept. 28. A hearing on a further stay has been scheduled for that day.

"Inmate Will Testify About Failed Execution"

The title of this post is the headline of this article from the New York Times concerning one of the ways in which Ohio's botched execution attempt has created some interesting legal action in on-going lethal injection litigation.  Here are the details:

Two days after the execution of a convicted rapist-murderer was halted when technicians were unable to inject him with lethal drugs, a federal judge ordered Thursday that the inmate be deposed for a federal lawsuit challenging the constitutionality of Ohio’s lethal injection procedure.

The deposition for the inmate, Romell Broom, is set for Monday, a day before he is scheduled to be executed. His lawyers said they planned to file appeals in state and federal courts on Friday seeking to cancel or at least postpone his execution....

On Thursday, federal public defenders argued before the judge, Gregory L. Frost of Federal District Court in Columbus, Ohio, that evidence supporting their case against lethal injection would be irretrievably lost if they were not able to interview Mr. Broom before his death.

“He has relevant evidence that needs to be preserved,” said David C. Stebbins, an assistant federal public defender in Columbus. “Mr. Broom has, of course, the most relevant testimony of what exactly they did to him and the amount of pain he was put in.” The deposition is for a case in the Federal District Court for the Southern District of Ohio.

“The core of the complaint,” Mr. Stebbins said, “is that there are insufficient protections built into the Ohio procedures that guarantee it will be a painless execution, that the protocols are not sufficient to guard against mistakes and that they don’t cover all issues like in Mr. Broom’s case.”

As detailed in this Columbus Dispatch article, headlined "Second-try execution is 'cruel,' suit to say," Broom's lawyers will be filing their 1983 suit seeking to block his "re-execution."  It is my understanding that this suit will be considered a related case to the on-going Ohio lethal injection lawsuit, which means that US District Judge Gregory Frost would get this case and make an initial ruling — perhaps as early as today? — about whether a stay is needed to consider the merits of Broom's new Eighth Amendment arguments.

Related posts on botched Broom execution attempt:

• Ohio struggling, legally and practically, with effort to execute offender
• More on Ohio's execution troubles and what could happen next
• Details on the botched Ohio execution attempt, issue spotting, and seeking predictions
• UK advocate saying botched Ohio execution attempt should be US turning point on death penalty
• Notable reactions in national and local papers in response to Ohio's "unexecuted"
• Will (and when and how will) SCOTUS have to weigh in on Ohio's desire to try execution again?