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December 8, 2009

A few early questions following Ohio's successful one-drug lethal injection execution

As noted here, the state of Ohio today succeeded in completing an execution using a single-drug lethal injection  protocol.  Time will tell if this event proves to be a big turning point or just a blip in the dynamic story of the modern administration of capital punishment in the United States.  But, before we have the benefit of historical hindsight, let me pose a few early post-execution questions:

1.  Does this development prove the death penalty can be effectively improved or that it usually cannot?  In the copious litigation over three-drug lethal injection protocols during the past decade, opponents of this protocol have often suggested the one-drug alternative adopted in Ohio.  The fact that Ohio finally moved to this approach might provide support for the claim that some states are genuinely interested in improving their capital systems.  But the fact that it took so long for even a single state to change course, and the fact that all other states still currently have the three-drug protocol in place, perhaps reveals that Ohio is an exception to the usual death penalty administration rule.

 2.  Does this development really please any who complained vociferously about the old three-drug protocol?  If any of the strenuous opposition to three-drug protocols was really focused only on possible suffering by the condemned while being executed, these opponents should be going out to celebrate tonight.  But I have long suspected that most (if not all) vocal opponents of three-drug lethal injection protocols are categorical opponents of the death penalty more generally, and thus I suspect there will be little celebration within this crowd tonight.

3.  Will Ohio have to deal with any more litigation over its new lethal injection protocol? Ohio has roughly one execution scheduled for each of the next six months.  I suspect that the condemned defendants scheduled to go next to the death chamber in Lucasville will have a hard time getting a stay based on a lethal injection challenge.  But, then again, one should never discount what clever capital defense lawyers can achieve.

4.  Will Ohio now be able to try to "re-execute" Romell Broom?  Ironically, the troublesome veins of condemned inmate Romell Broom, which resulted in Ohio failing when trying its old execution protocol  on him in September, deserve credit for forcing Ohio to adopt its new one-drug approach.  It remains to be seen, however, if Ohio will get to "reward" Broom through another trip to the death chamber.  I believe a hearing is scheduled tomorrow in federal court to consider Broom's claim that it is unconstitutional to try to execute him again now, and I really am chary to predict how this matter might get resolved.

Some related posts on Ohio lethal injection issues:

December 8, 2009 at 06:03 PM | Permalink


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Tracked on Dec 9, 2009 5:54:41 PM


Good post, Doug.

Posted by: federalist | Dec 8, 2009 6:41:39 PM

Agreed. Great post

Posted by: DaveP | Dec 8, 2009 6:54:17 PM

1. The 8A "unusual" punishment rule and so forth might lead states to avoid novelty in this area. If it works in one state, especially after the SC determined some flexibility is allowable, others might follow.

2. Even if only a few actual litigants care, the system overall benefits if this actually is a better way of doing things. The litigants in this fashion advance the common good, even if they don't care much about that.

3. Probably.

4. Who knows. A second go around can be thought to be inherently bad as some thought with Willie Francis.

Posted by: Joe | Dec 8, 2009 6:55:46 PM

The thing I notice about Ohio is that it is much easier to change the execution protocol. Other states require hearings, acceptance by the legislature or other difficult to meet conditions. Ohio on the other hand just needs the head of DRC to promulgate a new protocol, so long as lethal drugs are used.

I think that does more to explain why Ohio was willing to make the switch than any amount of litigation.

Posted by: Soronel Haetir | Dec 8, 2009 6:56:29 PM

I am still curious on why Ohio takes so many attempts to set the IV. This might be the only thing the opponents can argue about in future litigation

Posted by: DaveP | Dec 8, 2009 6:56:49 PM

"Good post, Doug."

Careful, man, you're going to ruin your image. ;)

Posted by: JC | Dec 8, 2009 6:59:26 PM

I have to agree this post goes down the middle of the road, and is what academia should be about, provoking thought. It implies much objection is pretextual. Pretextuality by any licensed lawyer should be criminalized. It is a type of fraud on the court, and on the purse of the taxpayer.

In the spirit of bipartisanship, I am going to give a gift to the vile criminal lover abolitionists.

Your next potential argument is not pretextual because the Supremacy does not do frivolous or weak:

The sole cruelty of the American death penalty is the set date. Not even terminal patients know their final day. Their cat might, but not them.


The cat might show up and be used to let the condemned know, only 4 hours remain today.

See what you can make of that argument.

Posted by: Supremacy Claus | Dec 8, 2009 9:55:46 PM

for those who havent seen it, heres the 6th Circuit opinion:


Posted by: federalist | Dec 8, 2009 10:23:09 PM

1. Like all human endeavors, of course the death penalty can be effectively improved. Any death penalty improvement will always be met with more litigation. It is product of the law and lawyers in this debate, as in many other issues.

2. Your assesment is accurate. Any execution will displease anti death penalty folks, which is the group that complained about the 3 drug protocol, for which there was no evidence of pain, caused specifically by that protocol.

3. That is a rhetorical question, yes? Of course there will be litigation. There's litigation when some inmates "volunteer" for execution.

4. Yes, Broom will be executed. Of course the one drug protocol does nothing to solve the vein problems with Broom. Therefore, the back up procedure, intramuscular injection, will be the primary source of litigation.

Posted by: Dudley Sharp | Dec 9, 2009 6:49:09 AM


Just to address a few points you raise and address one other concern.

On the issue of how do those inside the defense bar and repeal activists feel there are three camps from what I can tell. Those involved in Ohio dp issues, those not involved in Ohio dp issues, and the small band of others. The first group opposes the one drug procedure as human experimentation, some for the obvious humane reasons others because it is in their client/loved one's best interest. The second group, by far the largest in private email and public comment indicate, opposes all executions but gives hesitating approval (the public comments of Ty Alper of Boalt for example) of the one drug protocol; this group, to varying degrees has some concern about this being a new procedure for use on humans and Ohio's seeming inability to get the technical aspects of execution anywhere close to the level of competence (ie finding a vein) everyone would like. Finally there is a very small third group, perhaps no more than a handful of individuals, who would figure out a way to contest, as you suggest, even the most humane method of execution on pretextual grounds; this groups from private correspondence is exceptionally small.

One issue I do have with the comments left so far is the eeming dismissiveness (if that is a word) many posters seem to have about an attorney's ethical obligation to their client. A defense lawyer must zealously represent their client. In the capital postconviction context that means they must pursue any avenue that may lead to relief. If contesting the method of execution may lead to relief for a client than so be it, they must pursue that avenue. The problems most commentators seem to have in this regard is they simply don't like the American justice system's core value, an adverserial proceeding.

As an aside I should note, for all the time and money Ohio has sunk in to the new protocol, can't they find someone who knows how to inject a needle. A perfectly good protocol on paper is no substitute for one that will work in a timely, efficient and humane matter.

With all that stated, at the end of the day, and the end of the line, every lawyer owes a client facing their eternal God, whether dying of AIDS in a prison infirmary or strapped to a gurney and injected full of poison, the best death possible. I, and I suspect many others, see the one drug protocol, assuming Ohio can work out its bug (seriously guys get techs who can find veins, it ain't hard), as potentially a giant leap -- assuming executions are to continue -- forward in the methodology of capital punishment. We as a society have come a long way from drawing & quartering. The one drug protocol seems to be another step in the direction of a maturing society and its attempts at showing decency even for the worst of us.

Posted by: karl | Dec 9, 2009 9:52:09 PM

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