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November 22, 2009

Ohio death row defendant claiming new lethal injection protocol involves "human experimentation"

This local article, which is headlined "Lawyer: Ohio's lethal injection a human experiment," shows the argument that a death-row inmate is forced to using now that Ohio has adopted a new one-drug lethal injection protocol.  Here are the details:

The state's new lethal-injection plan is so untested that it would amount to human experimentation if used for the first time in December, an attorney for a condemned inmate said in a Friday court filing.

There is no reason for federal courts to allow the scheduled Dec. 8 execution of Kenneth Biros given the lack of details in the proposed system, which replaces a fatal three-drug cocktail with a single powerful dose of anesthetic, attorney Tim Sweeney said.

Ohio also has proposed a two-drug muscle injection as a backup, but Sweeney said in a filing with the 6th U.S. Circuit Court of Appeals in Cincinnati that there's no evidence of the backup's reliability.

"There is nothing in the record on which this Court can make any legitimate determination as to whether the 'back-up' they have selected is as or more constitutionally problematic than a gunshot to the head," Sweeney wrote. The proposal "is human experimentation, pure and simple," Sweeney said....

Biros killed 22-year-old Tami Engstrom near Warren in 1991. He had offered to drive her home from a bar, then dismembered her corpse and scattered her body parts in Ohio and Pennsylvania. He acknowledged killing her but said it was done during a drunken rage. Trumbull County prosecutor Dennis Watkins called Biros, 51, "a poster person for the death penalty."

Some related posts on Ohio lethal injection issues:

UPDATE:  Monday morning's issue of the Cleveland Plain Dealer has this effective new article on this topic.  The piece is headlined "New lethal injection policies put Ohio at center of legal and ethical debate over executions," and here are some key excerpts:

Death row inmates and advocates on both sides of the capital punishment debate across the country have had their eyes on Ohio since the recent announcement that this state will pioneer the use of a single drug to execute inmates....

However, Ty Alper, associate director of the Death Penalty Clinic at the University of California-Berkeley, which serves as a resource for defense attorneys suing states over lethal injection methods, said the one-drug method should cause less pain to the victim than the three-drug cocktail.  "I think this is something that is pretty well accepted," he said. "It's very similar to the way that animals are euthanized -- there's been a lot of testimony about it, and the effects of the anesthetic are pretty well known."

November 22, 2009 at 10:58 AM | Permalink


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How exactly would a gunshot to the head be constitutionally suspect? The method is very well proven for its efficiency and speed. It is also a method with thorough data to back up those claims.

Posted by: Soronel Haetir | Nov 22, 2009 11:15:35 AM

If the state proposed that the inmate should be executed by singing him a lullaby, that would be challenged on the grounds that the singer had a lousy voice.

It has nothing to do with supposed cruelty. It has everything to do with running the clock for the sake of running the clock.

Posted by: Bill Otis | Nov 22, 2009 12:02:02 PM

Soronel, it has the baggage of "shot execution style" that any "made man" can do. Put another way, what if there was a lottery with two winners? The first place winner gets to shoot him and the second place winner has to clean up the mess without getting the fun of shooting him. Despite so many saying they would love to pull the trigger themselves, the risk of having to clean up the mess would likely cut the lottery entries way down.

In other words, shooting is too much like common crime images we see on TV. That was a political argument.

Posted by: George | Nov 22, 2009 12:17:06 PM

By definition, human experimentation is for the benefit of others.

This new method is for the benefit of the condemned. One may try different approaches, see which suits the person best. That is not an experiment. That is a fitting. I try on different shoes. Some fit, some do not. That is not human experimentation. That is finding the best fitting shoe.

Posted by: Supremacy Claus | Nov 22, 2009 1:32:19 PM

Doesn't Biros have the burden here, not the state . . . .

Posted by: federalist | Nov 22, 2009 2:58:48 PM


CoA panels are remarkably adept at stating the correct standard then misapplying it.

Posted by: Soronel Haetir | Nov 22, 2009 5:38:06 PM

I had my best friend pooch put down when he got spinal cancer. I held his head on my lap. One shot and he closed his eyes and went to sleep with no pain. His heart stopped in twelve seconds.I would not do any less for a convictied killer.

Posted by: Dog gone | Dec 1, 2009 4:15:52 AM

I am a researcher. Pooch got his favorite food two big mac's before I took him to the vet.

Posted by: Dog gone | Dec 1, 2009 4:31:34 AM

I am a nurse. I have to ask why is it written that the drug should cause less pain to the "victim". The criminal, yes... the subject, yes... the victim, no- that was the person that was murdered. Just sayin'.

There are plenty of people who feel they are a 'victim' of almost everything, and I honestly think its time we start reserving that term for the actual victims.

Posted by: J Jone | Dec 8, 2009 1:52:04 PM

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