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March 20, 2007

The "just ridiculous" realities of Ohio's lethal injection litigation

This AP article about death penalty doings in Ohio highlights just some of the ugly realities that play out as states deal (poorly) with lethal injection litigation:

Despite a federal appeals court ruling blocking the execution, the state moved forward with plans to put to death a man who killed a woman, mutilated her body and scattered the remains across two states.  Ohio prison workers continued preparations for the execution of Kenneth Biros, 48, after the state appealed to the U.S. Supreme Court yesterday, seeking a ruling to allow the lethal injection.  By early this morning, the high court had not addressed the matter. 

That left standing yesterday's ruling by a 6th U.S. Circuit Court of Appeals panel in Cincinnati that denied the state's request to lift a lower court's order against the execution.  The appeals panel said Biros should be able to continue appealing a lawsuit with other inmates arguing that Ohio's method of lethal injection is cruel and unusual punishment.

Biros acknowledged he killed Tami Engstrom, 22, in 1991, but said it was done during a drunken rage.  "If this doesn't happen tomorrow, I don't know what I'm going to do," Engstrom's sister, Debi Heiss, 41, of Hubbard, told the Warren Tribune Chronicle yesterday.  "I think some words are going to be said that shouldn't be said.…  We've waited 16 years, and to be so close is just ridiculous."

Biros was moved yesterday to Ohio's death house at the Southern Ohio Correctional Facility in Lucasville, and prison workers will be ready to carry out the execution as scheduled this morning unless the Supreme Court allows the block to stand, prisons spokeswoman Andrea Dean said.

Biros received a special dinner at the prison about 4 p.m., Dean said. He ordered cheese pizza, salad with Italian dressing, cherry pie, blueberry ice cream, coffee with cream and sugar, Doritos with French onion dip and Pepsi.  After eating his meal, Biros met with his mother, two sisters and brother from about 4:30 p.m. until 8 p.m., Dean said....

Other executions have been delayed in the past year because of the lethal injection lawsuit.  However, former cult leader Jeffrey Lundgren was executed Oct. 24 despite his appeal.

Here is an abridged list of just some of the Kafkaesque realities now attending the death penalty in Ohio that are indeed "just ridiculous":

March 20, 2007 at 07:40 AM | Permalink


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Am I reading this correctly? Did the bullet-list of "ridiculous" realities come from you, Professor Berman, or is that a continuation of the AP article? I'd be less surprised if it came from the media, but if a renowned professor of law thinks its "ridiculous" for a defendant to resort to federal court to stop the state from torturing him while it kills him on the basis that his victim's survivors wanted him dead long ago. . . um, have we forgotten why court systems exist?

Posted by: anon | Mar 20, 2007 9:46:37 AM

anon: these bullet points are mine, and what I think is also ridiculous is the suggestion that the state of Ohio is eager to torture Biros as they kill him. I, for one, tend to trust state actors in the first instance, and part of that trust involves a belief that local actors are better able to balance competing concerns and harms. My chief point is that, for a variety of reasons for which I place blame in a lot of places, a (very?) slim possibility of physical pain of a short duration is trumping the knowing infliction of emotional pain on everyone other than the murderer himself.

Posted by: Doug B. | Mar 20, 2007 10:20:29 AM

I'm sorry to see such hasty and intemperate judgments from one whose capacity for thoughtful and balanced debate otherwise seems so immense. Eyewitness accounts of the multiple botched lethal injections in Missouri, for example, urge caution in how the good citizens of Ohio go about killing this killer. Who said you were "eager" to torture anyone? Citizens of Missouri presumably had no greater eagerness to inflict gratuitous pain when they killed Emmit Foster, or Bert Hunter (to cite just two examples) and I'm sure they never dreamed the official in charge of mixing the drugs would 'get the numbers wrong' while preparing the lethal combination due to dyslexia. I'm sorry to see a scholar I admire so greatly so quickly decry this grave inquiry by branding the lawsuit a mere effort to knowingly inflict greater mental torment on the already egregious heartbreak of the victim's survivors. I have too often heard prosecutors and politicians encouraging the survivors of murder victims to view any legal inquiry about the validity of a death sentence as disdainful of their misery, which itself may promote greater suffering for such horribly aggrieved people.

With still great respect for your amazing work, I would urge you to consider a bit more reflection before derisively condemning such litigation as "just ridiculous."

Posted by: anon | Mar 20, 2007 11:41:10 AM

anon: Let focus this debate on some key facts about Ohio's LI protocol and the on-going LI litigation that supports my ridiculous claim:

First, facts about Ohio's LI protocol:
1. Ohio correction officials, after the botched Clark execution in May 2006, reviewed Ohio's LI protocol.

2. I hope (though I perhaps should not assume) that Ohio's new Governor and AG this year also reviewed Ohio's protocol.

Because of my faith in Ohioians, I believe that the good citizens of Ohio (though their elected and appointed representatives) have already exercised caution in how Ohio goes about killing this killer.

Second, facts about Ohio's federal LI litigation:

A. Though the federal Ohio LI litigation has been going on for year, no federal court has ever examined or adjudged the constitutionality of the protocol.

B. The current stay is in place to allow Biros and others to appeal a (very late in coming) Sixth Circuit panel ruling that prisoners have brought their claims too late to be adjudicated on the merits.

So, let's add this up: Ohioians have looked at the LI protocol and want to move forward, federal courts are spending time debating whether Biros is even allowed to challenge the protocol and have halted matters while deciding whether it wants to decide the merits.

Would the term Kafkaesque feel more "scholarly" than "ridiculous"? I opted for the latter terms because I feel that the interests of victims, which so many fols pay homage to but do not really respect, deserved some attention.

Posted by: Doug B. | Mar 20, 2007 12:17:34 PM

Biros is another one few people will lose sleep over when executed, except anti-death penalty advocates and his lawyers, but all the states have to do is get it right. Victims likely suffer when when states fail to follow the Miranda and search and seizure protocols as well, but does that mean we should do away with both? Indeed, the entire Bill of Rights might interfere at various times with victim's wishes so should we do away with due process altogether? That is the trend.

As advanced as technology is today, it should be a fairly simple matter to accomplish an instant and painless death. There were botched executions and victim's should blame states for that rather than blaming the courts. All they had to do was get it right.

Posted by: George | Mar 20, 2007 2:13:48 PM

Moving Biros to death watch, knowing there's no purpose in it, is the epitome of cruel and unusual punishment. That's torture - never mind the horrible physical pain DOC may inflict.


Posted by: rothmatisseko | Mar 20, 2007 2:22:58 PM

George, actually, the burden of proof is on the convict, not the state. Done properly, lethal injection is painless.

You completely misstate the issue here. The Supreme Court itself has stated that victims and the state have in interest in the orderly working of state criminal judgment. With respect to the state, that interest is of constitutional moment, you know, the whole "Our Federalism" thing. Here, we have a late filed appeal over a process that has been litigated for well over a year that hasn't even been determined to be unconstitutional. Victims have a right to ask why, and federal courts shouldn't be jerking them around. This isn't about the Bill of Rights, this is about Biros throwing everything at the wall to see what sticks. States and victims deserve better than this shabby treatment.

Posted by: federalist | Mar 20, 2007 2:24:09 PM

rothmatisseko, the Supreme Court may lift the stay, and I believe that the word you are searching for is "apotheosis"

Posted by: federalist | Mar 20, 2007 2:41:45 PM

federalist, my point is if that past executions were not botched, LI itself would not be an issue. Botching Miranda or search and seizure protocols result in the same judicial oversight, as they should be. Why blame the courts when it is the executive branch that botches? What you are in effect arguing is a repeal of the 14th Amendment and for many people that is goal, but it has not been repealed yet.

Posted by: George | Mar 20, 2007 2:44:35 PM

“The Supreme Court itself has stated that victims and the state have in interest in the orderly working of state criminal judgment.”
Can you please provide a citation (and quotation) where the Supreme Court stated the interests of the victims in the “orderly working of a state criminal judgment.” I am not 100% sure that they said this, but I tend to think that you made it up. If you can’t provide the specific citation and quotation, I will be forced to conclude that you made this up.

“This isn't about the Bill of Rights, this is about Biros throwing everything at the wall to see what sticks.
It everyone’s right to make whatever legal arguments they think will succeed. This is pretty much the way most litigants behave. Throwing stuff at a wall to see what sticks, is, in fact, generally required by most courts which won’t hesitate to hold that an argument has been waived.

Perhaps victims have a right to ask why things are happening the way they are, but they have no right (beyond that of the general public) to get answers. The executive is in charge of prosecuting people. IF you don’t like the way they do things, you can change the government. (Personally, I favor allowing individuals or their representatives to commence “Death proceedings” against people they wish to kill, so as to eliminate the influence of prosecutors altogether. This would require a change to the constitution many are unwilling to make, however.)

Posted by: S.cotus | Mar 20, 2007 6:06:59 PM

"the Supreme Court might lift the stay."

Yes, and...? That gives the State the right to disregard a standing court order?

of course, they've denied cert now.

Posted by: rothmatisseko | Mar 20, 2007 6:50:51 PM

C'mon S.cotus, certainly you haven't forgotten about Hill v. McDonough already . . . .

You're right that it's Biros' right to litigate--it's the fault of the courts for letting this BS litigation go on and on.

Posted by: federalist | Mar 21, 2007 12:20:22 AM

Even though you did not provide any specifics regarding Hill. While it appears that you did not completely make it up, your authority might be a bit weak, since you took it a bit out of context.” On p. 12 of the slip opinion, the court does write, “Filing an action that can proceed under §1983 does not entitle the complainant to an order staying an execution as a matter of course. Both the State and the victims of crime have an important interest in the timely enforcement of a sentence…Our conclusions today do not diminish that interest, nor do they deprive federal courts of the means to protect it.”

Hill, as you obviously understand by now, is a § 1983 case, not a habeas case, so many of the same issues are at stake. Stays within a § 1983 case, unlike a habeas proceeding, are not necessary to resolution of matter. And the Supreme Court said so in the next paragraph. But, in the next paragraph, no such restatement of the “victim’s” interest is given. “We state again, as we did in Nelson, that a stay of execution is an equitable remedy. It is not available as a matter of right, and equity must be sensitive to the State’s strong interest in enforcing its criminal judgments without undue interference from the federal courts.”

In habeas, cases, since the legality of confinement (both in terms of the process and conditions) is at issue, but (at least for now) more stringent procedural requirements are in place, a stay of execution is essentially required to preserve the status quo.

Put another way (in case you are not a lawyer), post-execution, a habeas proceeding is generally moot. There is no legality of imprisonment to contest. But, a § 1983 case survives the death of the plaintiff, so the court need not use its equitable powers to ensure that he survives to the end of its adjudications.

Posted by: S.cotus | Mar 21, 2007 7:04:53 AM

I think executions should be cruel and unusual, especially for scum like this.If there was a posture person for executions, BIROS IS ONE.

Posted by: | Mar 21, 2007 3:10:33 PM

Are you proposing a constitutional amendment ?

Posted by: S.cotus | Mar 22, 2007 8:33:23 AM

that would be great!!!!!

Posted by: | Apr 2, 2007 2:09:42 PM

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