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October 7, 2009

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:

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

October 7, 2009 at 09:56 AM | Permalink


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I guess I understand your larger point with regard to people who advocate outside of a litigation context. But most of the real back-and-forth on this issue occurs in litigation, where the critics of execution protocols are advocates on behalf of specific clients. Their job is to point out what is wrong and/or unconstitutional about the state's treatment of their client. There is nothing hypocritical or cynical about doing that (and only that). Occassionally, proof that a particular practice violates the Constitution may require a showing of a plausible alternative, but otherwise it is emphatically *not* these advocates' job to help the state execute their client. Instead, they wait and see what the state comes up with and then decide whether there is a good-faith basis to challenge it. It is called the adversary system. The state always has the burden to conform its actions to the law, and I don't know why you pick this issue to shift the burden to the defense. If the police were to kick down my door without a warrant (or a valid exception) and seize some illegal dog-fighting tapes, would it be OK for my lawyer to just move to suppress? Or does he also have to explain to the police how they could constitutionally seize those tapes the next time around?

Posted by: lurky mclurksalot | Oct 7, 2009 10:30:27 AM

I agree that many opponents of the three-drug protocol are really just death penalty opponents focusing on one thing.

But I think everyone should welcome this development, even pro-death penalty advocates. There is no question that the protocol used is a bit of a historical accident, being proposed by a single Oklahoma state senator in the late '70s. I did think it was a shame with Baze v. Rees that the Justices felt on the defensive and had to immediately affirm Kentucky's procedures -- I thought there'd be more votes for a remand to flesh out what the risks are under the correct standard.

Death penalty advocates and opponents of the three-drug protocol should use this opportunity to advocate for something truly humane now that there is, suddenly, political will to air the issue. Even if you oppose the death penalty I'd think you'd be for making the procedure as humane as possible even if you would like to see it all abolished. (I know the arguments about making it barbaric to show that it is cruel and should be outlawed, but that is well, barbaric.) And if you are pro-death penalty (and not bloodthirsty as has been alleged) then I'd think you'd want a humane but also unassailable way to carry out executions, and politically could distance yourself from the "let 'em fry" type language.

I would think we have learned a thing or two about the human body and effective mixtures of drugs in the three decades since the lethal injection cocktail was dreamed up; let's hope we can make the death penalty better.

Posted by: MJG | Oct 7, 2009 10:45:32 AM

I have a hard time believing any method that requires access to bone marrow could pass muster. A full surgical procedure to prepare for execution strikes me as a bit much. I don't know enough about agents that are both safe for the execution team to handle and reasonably lethal when injected into muscle to comment on that idea.

I do agree with Kent that there are good options in terms of a remade gas chamber, though that may still have enough Nazi association to be unpalatable.

Posted by: Soronel Haetir | Oct 7, 2009 11:39:59 AM

"Call me a cynic, but I have always believe that debates and litigation over lethal injection protocols have always been a form of shadow-boxing against the backdrop of a broader debate over the death penalty more broadly."

It is not cynical if it's true and that is a true statement, lurky's qualification accepted.

Posted by: Daniel | Oct 7, 2009 11:56:29 AM

Syllogistics for sickos.

No shame. Just logic.

Posted by: Samuel | Oct 7, 2009 12:35:58 PM

I agree with the first poster - it's not the job of lawyers for individual clients to assist the state in executing their clients, and to proactively do so even outside of the litigation context would raise some serious ethical concerns, I think. That said, Baze now requires a suggestion of feasible alternatives, and lawyers in many (perhaps most) lethal injection challenges have suggested such alternatives. In Baze, as in many other cases, lawyers suggested two feasible alternatives: 1) the current three-drug protocol but with adequate medical monitoring of the entire process or 2) a switch to a one-drug, anesthetic-only procedure similar to that used in animal euthanasia. Judges as well as at least one executive commission (in Tennessee) have suggested or recommended the anesthetic-only procedure. Those two suggestions are not secrets and support for them can easily be found without lawyers for death row inmates having to compromise their obligations to their clients.

Posted by: Ty Alper | Oct 7, 2009 4:39:33 PM

It makes no difference what method of execution is tried. DP opponents will litigate against it non-stop, regardless of what it is. The point is not to force the state to adopt any particular or "better" method. The point is to make the the system turn itself into a pretzel and keep the ball rolling no matter what, since the convicted killer has nothing to lose and no costs to bear.

Posted by: Bill Otis | Oct 8, 2009 10:17:40 AM

All lethal injection protocols strike me as flawed attempts to turn an inherently violent act into a pseudo-medical procedure. If we are to have executions, why not use shooting as the method of inflicting death? Bullets cannot stopped by obesity or bad veins.

Posted by: Derick S | Oct 8, 2009 3:00:50 PM

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