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June 11, 2008

Creating a catch-22 for effective reform of lethal injection protocols

As detailed in this press release, a "team of medical, ethical, and legal scholars argues in PLoS Medicine that in some US states the modification of lethal injection protocols is tantamount to experimentation upon prisoners without the prisoners' consent and without any ethical safeguards."  Here is more from the press release:

Drs. Leonidas Koniaris and Teresa Zimmers (University of Miami Miller School of Medicine, Miami, Florida, USA) and colleagues lay out evidence obtained in litigation and from Freedom of Information act requests that suggests that at least 10 states are performing regimens that may be akin to human experimentation....

[E]ven as jurists demand lethal injection protocol changes, say the authors, "corrections officials, governors, and their medical collaborators are left in a legal and ethical quandary -- in order to comply with the law and carry out their duties, they are employing the tools and methods of biomedical inquiry without its ethical safeguards."

Given the current guidelines for human experimentation, they say, "it is difficult to conceive of circumstances in which lethal injection research activities could be carried out in a fashion consistent with these ethical norms, and yet those engaged in such research would seem to be required to do so."

Speaking of jurists demanding lethal injection protocol changes, this AP article details that this has just happen in a state court in Ohio:

Ohio's method of putting prisoners to death is unconstitutional because two of three drugs used in lethal injection can cause pain, a judge ruled Tuesday.

The state's lethal injection process doesn't provide the quick and painless death required by Ohio law, said Lorain County Common Pleas Judge James Burge, who agreed with two inmates who had challenged the procedure.  Ohio must stop allowing a combination of drugs and focus instead on a single, anesthetic drug, Burge said.

A message seeking comment was left with state prisons officials. The ruling is likely to be appealed to the Ohio Supreme Court.

UPDATE:  Here is a link to the Ohio state court opinion.

June 11, 2008 at 01:25 AM | Permalink


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Ohio Trial Court's Lethal Injection Decision: Doug Berman at Sentencing Law and Policy posted today on the Catch-22 of lethal injection reform in the United States. In his post, Berman discusses a press release from a "team of medical, ethical,... [Read More]

Tracked on Jun 11, 2008 6:57:03 PM


Not related to the above, just wanted to alert you to this proposed concentration camp!!!!!!


Also see these documents:


And read what eAdvocate says, here:


Posted by: ZMan! | Jun 11, 2008 5:02:19 AM

As I said at the time Baze was decided, litigation would continue. This is not because lethal injection was rejected; the outcome of Baze was to the contrary. It's because litigation runs the clock, and that's the name of the game in death penalty defense circles.

The whole thing has a surreal quality to it. The purpose of a lethal injection is to induce death. It is not about medicine and it is not about healing. The prisoner's consent is not needed, so the ususl rules of patient informed consent do not apply. We are not dealing with a "patient," and "consent" is a moot question.

As the Chief Justice pointed out in his lead opinion in Baze, the purpose of states going to lethal injection was to try to make the execution as pain-free as possible. But if all we're going to hear from the abolitionist side is that lethal injection can't be undertaken anyway, fine. We can always go back to the gas chamber.

As the Chief also pointed out, (1) the established legality of the DP implies that there has to be some way to carry it out, and (2) the Eighth Amendment standard is not that all pain be avoided, but that reasonable steps be taken to avoid the wanton infliction of pain.

Focusing on the particular drug cocktail to be used is a gimmick. What it's really designed to do is to effectively repeal the DP without ever having to convince the electorate (or the judiciary for that matter) that repeal is warranted. The gimmick might have some temporary victories, but, after Baze, temporary is as far as it's going to go.

Posted by: Bill Otis | Jun 11, 2008 7:49:15 AM

This whole ruling is getting reversed without ever reaching the merits. No appellate court or the Ohio Supreme Court is going to find standing to challenge the protocol for 2 guys who have yet to go to trial.

On top of that, there are the ethical issues. Hand picking a guy that was co-counsel with you on a death penalty case and suggesting that he raise these issues seems to raise "the appearance of impropriety" that is forbidden by the judicial canons.

Of course, then there are the merits of this decision. Burge's reliance on the term "painlessly" is just misplaced. Read literally, that is impossible. The mere act of inserting an IV will involve some form of pain. This is nothing more than an attempt by a lame duck judge (he's age limited out - so he can't run again) to enforce his moral views, rather than applying the law.

Posted by: NewFedClerk | Jun 11, 2008 8:16:42 AM


You can be my clerk anytime.

Of course I'm not a judge, but you can't let technicalities stand in the way. Judge Burge certainly isn't.

Posted by: Bill Otis | Jun 11, 2008 9:11:05 AM

New Fed Clerk,

(“No appellate court or the Ohio Supreme Court is going to find standing to challenge the protocol for 2 guys who have yet to go to trial.”)

1. Don’t be so sure that Ohio has the same standing rules that Article III requires.

2. Challenges to the legality of the death penalty are routinely made pre-trial. (I have not kept abreast of Baze-method-challenges, but general challenges to the DP are made pre-trial.)

Somehow all the “New” Fed Clerks seem to rush to call everyone else unethical. I have seen it before, and I will see it again. Of course, you do more than that. You jump to the merits.

Posted by: S.cotus | Jun 11, 2008 10:14:42 AM

New Fed Clerk,

Oh, one more thing, read the opinion before commenting on it. This is a very important skill for a lawyer to have. Judge Burge did not hold that Baze requires that absolutely “no” pain be involved. Instead (on p. 7), he explains that the current procedure “creates an unnecessary and arbitrary risk that the condemned will experience an agonizing and painful death.” His analysis makes it very “clear” that the preparation process is not at issue, but rather the actual process of killing the guy needs to be “without pain” under the statute.

I realize that you might be used to commenting on legal matters without first reading the underlying documents, but in some circles this is not considered adequate. You may wish to revisit your current policy. You also should probably read the statutes.

On the other hand, you could be Mr. Otis’ clerk.

Posted by: S.cotus | Jun 11, 2008 10:22:14 AM

I have to give credit where credit is due. S.cotus makes an excellent point about standing. The blind pig gets the acorn every once in a while. Many states, by the way, have much stricter views on separation of powers.

Where the court stumbles, I think, is that the drug sequence, if done properly, will cause a painless and quick death, and that is what the statute requires.

Posted by: federalist | Jun 11, 2008 12:12:28 PM

Sorry again - but standing in Ohio to challenge the LI protocol will never be found for a guy who hasn't gone to trial. At best, he's 15 years from having the protocol used against him, so he can't have standing to challenge it. Having clerked for an appellate judge in Ohio, I'm familiar with the standing requirements, and Burge's assertion that seating a death eligible jury is a sufficient interest to challenge the protocol doesn't meet the standard.

Posted by: NewFedClerk | Jun 11, 2008 12:55:20 PM

NewFed--it will be interesting to see how this plays out. S.cotus will be asking you for a citation.

I agree with your assessment that this guy Burge is simply trying to impose his morality on the law. Hopefully, the Ohio Supreme Court will not delay other executions because of this litigation. Coeey and Biros need to be executed.

Posted by: federalist | Jun 11, 2008 1:11:31 PM

It would also be nice if S.Cotus simply didn't cherry pick one quote from the nine page order. If Burge wasn't relying on the specific language of Ohio LI statute, it seems that he would not have specifically defined "painless" as "without pain." Pg 6 of the order.

Furthermore, if he were just following the test laid out in Baze, I doubt you would see "As distinguished from this case, the Kentucky lethal injection statute has no mandate that an execution be painless... Thus, the analysis of that statute, ... is not applicable here... the court holds that [Ohio law] demands the avoidance of any unnecessary risk of pain."

So, do I think he relied to an absurd extent on the term "painless"? Yes.

And S.cotus, thanks for all the wonderful practice tips. Your inate ability to insult others while consistently being wrong yourself is a quality I'll assuredly ascribe to in the future.

Posted by: NewFedClerk | Jun 11, 2008 1:51:52 PM

I particularly like this quote: "The mandatory duty to insure a painless execution is not satisfied by the use of a lethal injection protocol which is painless, assuming no human or mechanical failures in conducting the execution."

Not that there's an unnecessary risk that an error will occur. He has essentially concluded that because the protocol itself could cause pain, it's out. That only a drug that cannot cause pain can be used. That is my objection to him construing and relying on the term "painless" as he has.

Posted by: NewFedClerk | Jun 11, 2008 1:56:33 PM

NewFed, this is an example of S.cotus' work product:

"Anyway, let me be clear on my point. It isn’t that complicated. 14th amendment equal protection post-dates the signing of the constitution and the ratification of the bill of rights by over a century. While the constitution was envisioned as a compact between the states and allocation of some federal and state power, and the bill of right was envisioned as a means to protect people from federal power, the post-civil war amendments were viewed as a way to reign in the evil in the south. It was not until later that the “rights” recognized in the “bill of rights” began being “incorporated” to the states (i.e. applied to the states as well as the federal government). The extent to which they applied is not 100% clear, though most people will always say, “sure, they all do.” Off the top of my head, the following are questionable areas of selective incorporation: 1) establishment clause (maybe this is just Justice Thomas); 2) the 2d amendment; 3) 8th amendment prohibition against unreasonable bail); and 4) the interrelationship between the ADA and the 11th and 14th amendments (i.e. Congress’s ability to abrogate state sovereign immunity in the name of the 14th)."

Posted by: federalist | Jun 11, 2008 3:02:22 PM

Federalist, I don’t see how this has anything to do with the 14th amendment. Maybe you can help us out here. It seems irrelevant to this discussion, but maybe I am missing something.

My guess is that it would be difficult to find a case where an Ohio Appellate Court found that it was error not to adjudicate the challenges to the death penalty BEFORE trial. If the trial court judge heard the challenges and rejected them, they would be appealed post-trial (or moot); and if the trial court judge did not hear them pre-trial, but the defendant was ultimately sentenced to be killed, he could litigate them on appeal. But, if you have appellate caselaw in Ohio saying that trial court judges cannot hear a challenge to the death penalty in general (or the method in particular) pre-trial, by all means, someone should post it.

NewLawClerk, Usually I say that any decision or order that I don’t like is an example of someone imposing their own “morality” on the law. This is true with 100% of the decisions that I don’t like. If you disagree with this proposition, you are imposing your morality upon the law.

I certainly did not mean to insult you. However, if you wanted to convince me that you were right, you would have, as Federalist points out, provided cites.

Posted by: S.cotus | Jun 11, 2008 4:53:07 PM

Once again, S.cotus, I am pointing out to others the shabbiness of your posts. The quoted material, authored by you, is laughably bad. I am just letting others see the crap you've posted so they can take your criticism and condescension with a grain of salt.

You did make a good point about not assuming that standing issues are treated the same in Ohio state courts as they are under Article III. NewFedClerk, though, appears to have significant experience in Ohio, so that means he likely did not do so.

Posted by: federalist | Jun 11, 2008 5:18:45 PM

Federalist, I don’t really see what you are talking about. I guess you want to insult me or something. Whatever floats your boat. It doesn’t make your underlying point more or less correct.

Posted by: S.cotus | Jun 11, 2008 5:27:21 PM

I knew this judge was going to rule this way a couple of months ago. He was constantly giving the state's lawyer a hard time. He also is an ex-criminal defense attorney who has a picture of one of his Ohio death row clients, James Filaggi on his desk. Didn't do Filaggi any good. The media is reporting that Burge is the first judge to order a 1 drug method. I thought Judge Fogel in CA, Judge Trauger in TN, and Judge Gaitan in MO have ruled this way also. I believe the 8th Circuit reversed Gaitan in Taylor V Crawford

Posted by: DaveP | Jun 11, 2008 8:16:27 PM

S.cotus, you really are a dense one, aren't you? Even a dunce who doesn't understand that the interplay between the 11th and 14th Amendments has nothing to do with "selective incorporation" of the Bill of Rights, should be able to see that I am reposting nonsense you have posted in here so that people can see that your snideness and tone of superiority are unwarranted.

When you write things like this:

"I realize that you might be used to commenting on legal matters without first reading the underlying documents, but in some circles this is not considered adequate. You may wish to revisit your current policy. You also should probably read the statutes."

you should be prepared to have your stupidity called out.

Posted by: federalist | Jun 11, 2008 10:08:10 PM

Sorry, I still don't get the relevance. Why not try a few more posts?

Posted by: S.cotus | Jun 11, 2008 11:13:23 PM

S.cotus, I can explain it to you, SFB, but I cannot understand it for you.

Posted by: federalist | Jun 12, 2008 9:59:16 AM

That is correct. I will never understand your 14th amendment argument.

Posted by: S.cotus | Jun 12, 2008 1:11:07 PM

It's not an argument. It's a quote of yours, SFB. What the quote does is show people that you have no business insulting others here. You aren't that bright. It's ok, it's a big world, and you have company.

Posted by: federalist | Jun 12, 2008 1:52:36 PM

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